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BANCROFT    LIBRARY 


CONSTITUTIONS  OF  ARIZONA  AND  NEW  MEXICO 


THE    INITIATIVE,    REFERENDUM,    AND    RECALL    AS 
EMBODIED  IN  THE  ARIZONA  CONSTITUTION,  WITH 
A  HISTORY  OF  THEIR  ORIGIN  AND  DEVELOP- 
MENT IN  THE  UNITED  STATES 


SPEECH 


OF 


HON.  GEORGE  E*CHAMBERLAIN 


OF    OREGON 


SENATE  OF  THE  UNITED  STATES 


APRIL  17,  1911 


WASHINGTON 
1911 


90455-9341 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/constitutionsofaOOchamrich 


Bancroft  Librarj 


SPEECH 

Olf. 

HON.  GEOKGE  E.   CHAMBERLAIN. 


The  Senate  having  under  consideration  the  resolution  (S.  J.  Res.  2) 
approving  the  constitutions  formed  by  the  constitutional  conventions  of 
the  Territory  of  New  Mexico  and  the  Territory  of  Arizona — 

Mr.  CHAMBEHLAIN  said: 

Mr.  President  :  The  Sixty-first  Congress  passed  an  act  entitled 
"An  act  to  enable  the  people  of  New  Mexico  to  form  a  consti- 
tution and  State  government  and  be  admitted  to  the  Union 
on  an  equal  footing  with  the  original  States,  and  to  enable  the 
people  of  Arizona  to  form  a  constitution  and  State  government 
and  be  admitted  to  the  Union  on  an  equal  footing  with  the 
original  States."  This  act  was  approved  by  the  President  on 
the  20th  day  of  June,  1910. 

On  the  21st  day  of  January,  1911,  the  people  of  New  Mexico 
adopted  a  constitution,  and  on  the  Tth  day  of  February,  1911, 
^  the  people  of  Arizona  adopted  theirs.     An  effort  was  made  in 
the  expiring  moments  of  the  last  Congress  to  adopt  House  joint 
"*  resolution  295,  approving  the  constitution  of  New  Mexico,  and 
>j  the  purpose  of  the  friends  of  the  resolution,  in  the  light  of  sub- 
sequent events,  seems  to  have  been  to  admit  New  Mexico  to 
the  Union  and  postpone  or  defeat  the  admission  of  Arizona. 
^5  But  if  this  was  the  purpose  it  was  defeated,  because  the  friends 
\f   of  Arizona  were  there  to  insist  that  the  same  treatment  should 
—  be  accorded  to  the  people  of  both  Territories,  and  the  splendid 
fight  made  by  the  distinguished  Senator  from  Oklahoma  to  see 
that  equal  and  exact  justice  should  be  accorded  to  the  people 
f4    of  both  is  fresh  in  the  minds  of  most  of  the  Members  of  this 

*  body. 

P       No  enabling  act  was  necessary  under  the  Constitution,  nor 

J?   under  any  law  of  Congress,  to  authorize  the  people  of  either 

of  these  Territories  to  apply  to  Congress  for  admission  to  the 

Union.     On   the   contrary,   the  method  of  procedure  has  been 

left  entirely  to  the  States,  and  in  some  instances,  notably  upon 

«,'    the  admission  of  Vermont,  Kentucky,  Tennessee,  Maine,  Michi- 

i>    gan,   Arkansas,    Florida,    Idaho,    California,    and   Oregon,    the 

initial  steps  were  taken  for  the  preparation  of  their  constitu- 

<i~-    tions  and  admission  to  the  Union  without  any  enabling  acts 

j    having  been  previously  passed  by  Congress. 

4      The  act  in  question  is  the  first  in  the  history  of  our  country 

"J  where  provision  has  been  made  in  a  single  act  enabling  two 

Territories  to  take  the  initial  steps  looking  to  the  framing  and 

adoption  of  a  constitution  as  preliminary  to  their  knocking  at 

the  doors  of  Congress  for  admission  as  component  parts  of  the 

Federal  Union.     The  restrictions  and  limitations  applicable  to 

each  of  the  Territories  in  question  are  practically  the  same,  and 

I  shall  insist  that  both  Territories  are  entitled  to  admission  at 

one  and  the  same  time  under  the  same  terms  and  conditions,  if 

90405— 9841  3 


4 

they  have  met  tbe  requirements  of  the  Constitution  and  the  act 
of  authorization,  and  the  conditions  exist  in  both  which  entitle 
them  to  admission  at  the  hands  of  this  Congress. 

I  do  not  understand  that  any  objection  is  made  to  their  admis- 
sion on  the  ground  that  the  necessary  conditions  do  not  exist 
in  both  to  entitle  them  to  admission,  or  that  any  objection 
whatsoever  has  heretofore  been  made  to  the  admission  of  the 
Territory  of  New  Mexico,  either  because  of  any  constitutional 
inhibition  or  any  alleged  violation  of  the  Constitution  of  the 
United  States  in  the  provisions  of  the  constitution  which  her 
people  have  adopted  and  certified  up  through  the  proper  chan- 
nels for  the  approval  of  Congress,  notwithstanding  the  fact 
that  they  have  adopted  one  entirely  hostile  to  their  best  inter- 
ests; but  it  has  been  objected  to  the  constitution  adopted  by 
the  people  of  Arizona  that  it  is  violative  of  that  portion  of  sec- 
tion 4  of  Article  IV  of  the  Constitution  of  the  United  States, 
which  provides  that — 

The  United  States  shall  guarantee  to  every  State  in  this  Union  a 
republican  form  of  government. 

If  the  constitution  adopted  by  the  constitutional  convention 
of  Arizona  is  violative  of  this  provision,  it  is  also  violative  of 
section  20  of  the  enabling  act  of  June  20,  1910,  which  provides 
in  substance  that  the  constitution  of  Arizona  shall  be  republican 
in  form  and  shall  make  no  distinction  in  civil  or  political  rights 
on  account  of  race  or  color,  and  shall  not  be  repugnant  to  the 
Constitution  of  the  United  States  and  the  principles  of  the 
Declaration  of  Independence. 

Section  4  of  Article  IV  of  the  Constitution  is  a  restatement 
in  slightly  different  language  of  the  substance  of  a  proviso  in 
Article  IV  of  the  Ordinance  of  1787  for  the  government  of  the 
territory  of  the  United  States  northwest  of  the  Ohio  River,  re- 
quiring that  the  constitutions  and  government  of  the  States 
carved  out  of  this  territory  and  admitted  by  their  delegates 
into  the  Congress  shall  be  republican  and  in  conformity  to  the 
principle!  contained  in  said  articles. 

The  provision  of  the  enabling  act  with  reference  to  the  ad- 
mission of  Arizona  is  a  reenactment,  first,  of  the  provision  cov- 
ering the  admission  of  new  States  adopted  by  the  Constitutional 
Congress  on  the  13th  of  July,  1787,  and,  second,  of  section  4  of 
Article  1V  of  the  Constitution  of  the  United  States,  as  it  was 
finally  ratified  by  the  Thirteen  Colonies. 

The  territory  embraced  within  the  limits  of  Arizona  is  a  part 
of  the  territory  ceded  to  the  United  States  by  Mexico  under  the 
terms  of  the  treaty  of  Guadalupe  Hidalgo  on  February  2,  1848, 
a i i<l  |  part  of  what  is  known  as  the  Gadsden  Purchase  of  1852, 
and  there  is  no  limitation  or  restriction  placed  upon  the  Con- 
gress of  the  United  states  in  either  the  treaty  or  the  agreement 
of  purchaie  as  to  the  admission  of  this  acquired  territory  into 
the  Union. 

In  the  Louisiana  Purchase,  however,  the  duty  is  imposed  that 
States  e.irved  out  of  the  territory  shall  be  admitted  to  the 
Dotal  under  the  terms  of  the  Constitution.  It  has  been  as- 
1  without  question,  even  in  the  absence  of  such  treaty  stipu- 
lation, that  all  territory  acquired  by  the  United  States,  whether 
under  treaty  or  otherwise,  can  only  be  admitted  to  the  Union 
up.  ^1  ■  compliance  with  the  provisions  of  the  Constitution  and 
the  requirement!  of  the  ordinance  of  1787,  which  became  a  com- 
00405—0841 


pact  between  the  several  States  of  the  Union  at  the  time  of  its 
adoption  with  reference  to  the  territory  then  owned  by  them, 
and  which  was  practically  ceded  to  the  United  States  to  be 
later  admitted  in  due  course  to  statehood. 

In  considering  the  constitution  adopted  by  the  people  of  Ari- 
zona, therefore,  it  will  be  necessary  to  consider  it  in  the  light 
of  these  instruments  and  the  construction  placed  thereon  by  all 
the  departments  of  government,  national  and  State. 

The  provisions  of  the  Arizona  constitution  which  it  is  in- 
sisted are  obnoxious  to  the  Constitution  are  Articles  IV  and 
VIII,  establishing  as  a  part  of  the  fundamental  law  the  initia- 
tive, the  referendum,  and  the  recall.  These  provisions  are  as 
follows; 

Article  IV. 

LEGISLATIVE    DEPARTMENT. 

1.  Initiative  and  referendum. 
Sec.  1.  (1)  The  legislative  authority  of  the  State  shall  be  vested  in 
a  legislature,  consisting  of  a  senate  and  a  house  of  representatives,  but 
the  people  reserve  the  power  to  propose  laws  and  amendments  to  the 
constitution  and  to  enact  or  reject  such  laws  and  amendments  at  the 
polls,  independently  of  the  legislature  ;  and  they  also  reserve,  for  use 
at  their  own  option,  the  power  to  approve  or  reject  at  the  polls  any 
act,  or  item,  section,  or  part  of  any  act,  of  the  legislature. 

(2)  The  first  of  these  reserved  powers  is  the  initiative.  Under  this 
power  10  per  cent  of  the  qualified  electors  shall  have  the  right  to  pro- 
pose any  measure,  and  15  per  cent  shall  have  the  right  to  propose  any 
amendment  to  the  constitution. 

(3)  The  second  of  these  reserved  powers  is  the  referendum.  Under 
this  power  the  legislature,  or  5  per  cent  of  the  qualified  electors,  may 
order  the  submission  to  the  people  at  the  polls  of  any  measure,  or 
item,  section,  or  part  of  any  measure,  enacted  by  the  legislature,  except 
laws  immediately  necessary  for  the  preservation  of  the  public  peace, 
health,  or  safety,  or  for  the  support  and  maintenance  of  the  departments 
of  the  State  government  and  State  institutions;  but  to  allow  opportunity 
for  referendum  petitions,  no  act  passed  by  the  legislature  shall  be 
operative  for  90  days  after  the  close  of  the  session  of  the  legislature 
enacting  such  measure,  except  such  as  require  earlier  operation  to  pre- 
serve the  public  peace,  health,  or  safety,  or  to  provide  appropriations 
for  the  support  and  maintenance  of  the  departments  of  State  and  of  State 
institutions  :  Provided,  That  no  such  emergency  measure  shall  be  con- 
sidered passed  by  the  legislature  unless  it  shall  state  in  a  separate  sec- 
tion why  it  is  necessary  that  it  shall  become  immediately  operative, 
and  shall  be  approved  by  the  affirmative  votes  of  two-thirds  of  the 
members  elected  to  each  house  of  the  legislature,  taken  by  roll  call  of 
ayes  and  nays,  and  also  approved  by  the  governor ;  and  should  such 
measure  be  vetoed  by  the  governor,  it  shall  not  become  a  law  unless  it 
shall  be  approved  by  the  votes  of  three-fourths  of  the  members  elected 
to  each  house  of  the  legislature,  taken  by  roll  call  of  ayes  and  nays. 

(4)  All  petitions  submitted  under  the  power  of  the  initiative  shall 
he  known  as  initiative  petitions,  and  shall  be  filed  with  the  secretary 
of  state  not  less  than  four  months  preceding  the  date  of  the  election 
at  which  the  measures  so  proposed  are  to  be  voted  upon.  All  petitions 
submitted  under  the  power  of  the  referendum  shall  be  known  as  referen- 
dum petitions,  and  shall  be  filed  with  the  secretary  of  state  not  more 
than  90  days  after  the  final  adjournment  of  the  session  of  the  legisla- 
ture which  shall  have  passed  the  measure  to  which  the  referendum  is 
applied.  The  filing  of  a  referendum  petition  against  any  item,  section, 
or  part  of  any  measure  shall  not  prevent  the  remainder  of  such  measure 
from  becoming  operative. 

(5)  Any  measure  of  amendment  to  the  constitution  proposed  under 
the  initiative,  and  any  measure  to  which  the  referendum  is  applied, 
shall  be  referred  to  a  vote  of  the  qualified  electors,  and  shall  become 
law  when  approved  by  a  majority  of  the  votes  cast  thereon  and  upon 
proclamation  of  the  governor,  and  not  otherwise. 

(6)  The  veto  power  of  the  governor  shall  not  extend  to  initiative  or 
referendum  measures  approved  by  a  majority  of  the  qualified  electors. 

(7)  The  whole  number  of  votes  cast  for  all  candidates  for  governor 
at  the  general  election  last  preceding  the  filing  of  any  initiative  or 
referendum  petition  on  a  State  or  county  measure  shall  be  the  basis 
on  which  the  number  of  qualified  electors  required  to  sign  such  petition 
shall   be  computed. 

90455—9841 


(8)  The  powers  of  the  initiative  and  the  referendum  are  hereby  fur- 
ther reserved  to  the  qualified  electors  of  every  incorporated  city,  town, 
and  county  as  to  all  local,  city,  town,  or  county  matters  on  which  such 
incorporated  cities,  towns,  and  counties  are  or  shall  he  empowered  by 
general  laws  to  legislate.  Such  incorporated  cities,  towns,  and  counties 
may  prescribe  the  manner  of  exercising  said  power  within  the  restric- 
tions of  general  laws.  Under  the  power  of  the  initiative  15  per  cent 
of  the  qualified  electors  may  propose  measures  on  such  local,  city,  town, 
or  county  matters,  and  10  per  cent  of  the  electors  may  propose  the 
referendum  on  legislation  enacted  within  and  by  such  city,  town,  or 
county.  Until  provided  by  general  law,  said  cities  and  towns  may  pre- 
scribe the  basis  on  which  said  percentages  shall  be  computed. 

(9)  Every  initiative  or  referendum  petition  shall  be  addressed  to  the 
secretary  of  state  in  the  case  of  petitions  for  or  on  State  measures,  and 
to  the  clerk  of  the  board  of  supervisors,  city  clerk,  or  corresponding 
officer  in  the  case  of  petitions  for  or  on  county,  city,  or  town  measures ; 
and  shall  contain  the  declaration  of  each  petitioner,  for  himself,  that 
he  is  a  qualified  elector  of  the  State  (and  in  the  case  of  petitions  for 
or  on  city,  town,  or  county  measures,  of  the  city,  town,  or  county  af- 
fected), his  post-office  address,  the  street  and  number,  if  any,  of  his 
residence,  and  the  date  on  which  he  signed  such  petition.  Each  sheet 
containing  petitioners'  signatures  shall  be  attached  to  a  full  and  correct 
copy  of  the  title  and  text  of  the  measure  so  proposed  to  be  initiated 
or  referred  to  the  people,  and  every  sheet  of  every  such  petition  contain- 
ing signatures  shall  be  verified  by  the  affidavit  of  the  person  who  cir- 
culated said  sheet  or  petition,  setting  forth  that  each  of  the  names 
on  said  sheet  was  signed  in  the  presence  of  the  affiant,  and  that  in  the 
belief  of  the  affiant  each  signer  was  a  qualified  elector  of  the  State,  or, 
in  the  case  of  a  city,  town,  or  county  measure,  of  the  city,  town,  or 
county  affected  by  the  measure  so  proposed  to  be  initiated  or  referred 
to  the  people. 

(10)  When  any  initiative  or  referendum  petition  or  any  measure 
referred  to  the  people  by  the  legislature  shall  be  filed,  in  accordance 
with  this  section,  with  the  secretary  of  state,  he  shall  cause  to  be 
printed  on  the  official  ballot  of  the  next  regular  general  election  the  title 
and  number  of  said  measure,  together  with  the  words  "  Yes "  and 
"  No "  in  such  manner  that  the  electors  may  express  at  the  polls 
their  approval  or  disapproval  of  the  measure. 

(11)  The  text  of  all  measures  to  be  submitted  shall  be  published  as 
proposed  amendments  to  the  constitution  are  published,  and  in  sub- 
mitting such  measures  and  proposed  amendments  the  secretary  of  state 
and  all  other  officers  shall  be  guided  by  the  general  law  until  legislation 
shall  be  especially  provided  therefor. 

(12)  If  two  or  more  conflicting  measures  or  amendments  to  the 
constitution  shall  be  approved  by  the  people  at  the  same  election,  the 
measure  or  amendment  receiving  the  greatest  number  of  affirmative 
Totes  shall  prevail  in  all  particulars  as  to  which  there  is  conflict. 

(13)  It  shall  be  the  duty  of  the  secretary  of  state,  in  the  presence 
of  the  governor  and  the  chief  justice  of  the  supreme  court,  to  canvass 
the  votes  for  and  against  each  such  measure  or  proposed  amendment 
to  the  constitution  within  30  days  after  the  election,  and  upon  the 
completion  of  the  canvass  the  governor  shall  forthwith  Issue  a  procla- 
mation, giving  the  whole  number  of  votes  cast  for  and  against  each 
measure  or  proposed  amendment,  and  declaring  such  measures  or 
amendments  as  are  approved  by  a  majority  of  those  voting  thereon  to 
be  law. 

(14)  This  section  shall  not  be  construed  to  deprive  the  legislature 
of  the  right  to  enact  any  measure. 

(15)  This  section  of  the  constitution  shall  be,  In  all  respects,  self- 
executing. 

Si.<  . '_'.  The  legislature  shall  provide  a  penalty  for  any  willful  viola- 
tion of  any  of  the  provisions  of  the  preceding  section. 

Article  VIII. 

REMOVAL  FROM   OFFICE. 

1.  Recall  of  public  officers. 
Section  1.  Every  public  officer  in  the  State  of  Arizona  holding  an 
elective  office,  either  by  election  or  appointment,  is  subject  to  recall 
from  such  office  by  the  qualified  electors  of  the  electoral  district  from 
which  candidates  are  elected  to  such  office.  Such  electoral  district 
may  Include  the  whole  State.  Such  number  of  said  electors  as  shall 
equal  25  per  cent  of  the  number  of  votes  cast  at  the  last  preceding 
general  election  for  all  of  the  candidates  for  the  office  held  by  such 
officer  may  by  petition,  which  shall  be  known  as  a  recall  petition, 
demand  his  recall. 
00455—0841 


7 

Sec.  2.  Every  recall  petition  must  contain  a  general  statement  In 
not  more  than  200  words  of  the  grounds  of  such  demand,  and  must  ho 
filed  in  the  office  in  which  petitions  for  nominal  ions  to  t lie  office  held 
by  the  incumbent  arc  required  to  be  tiled.  The  signatures  to  such 
recall  petition  need  not  all  be  on  one  sheet  of  paper,  but  each  signer 
must  add  to  his  signature  the.  date  of  his  signing  said  petition  and  his 
place  of  residence,  giving  his  street  and  number,  if  any,  should  he 
reside  in  a  town  or  city.  One  of  the  signers  of  each  sheet  of  such 
petition,  or  the  person  circulating  such  sheet,  must  make  and  subscribe 
an  oath  on  said  sheet  that  the  signatures  thereon  are  genuine. 

Sec.  3.  If  said  officer  shall  offer  his  resignation,  it  shall  be  accepted. 
and  the  vacancy  shall  be  filled  as  may  be  provided  by  law.  If  he  shall 
not  resign  within  live  days  after  a  recall  petition  is  filed,  a  special 
election  shall  be  ordered  to  be  held,  not  less  than  20  nor  more  than  30 
days  after  such  order,  to  determine  whether  such  officer  shall  be  re- 
called. On  the  ballots  at  said  election  shall  be  printed  the  reasons, 
as  set  forth  in  the  petition,  for  demanding  his  recall,  and,  in  not  more 
than  200  words,  the  officer's  justification  of  his  course  in  office.  He 
shall  continue  to  perform  the  duties  of  his  office  until  the  result  of 
said  election  shall  have  been  officially  declared. 

Sec.  4.  Unless  he  otherwise  request,  in  writing,  his  name  shall  be 
placed  as  a  candidate  on  the  official  ballot  without  nomination.  Other 
candidates  for  the  office  may  be  nominated  to  be  voted  for  at  said 
election.  The  candidate  who  shall  receive  the  highest  number  of  votes 
shall  be  declared  elected  for  the  remainder  of  the  term.  Unless  the 
incumbent  receive  the  highest  number  of  votes,  he  shall  be  deemed  to 
be  removed  from  office,  upon  qualification  of  his  successor.  In  the 
event  that  his  successor  shall  not  qualify  within  five  days  after  the 
result  of  said  election  shall  have  been  declared,  the  said  office  shall  be 
vacant,  and  may  be  filled  as  provided  by  law. 

Sec.  5.  No  recall  petition  shall  be  circulated  against  any  officer  until 
he  shall  have  held  his  office  for  a  period  of  six  months,  except  that  it 
may  be  filed  against  a  member  of  the  legislature  at  any  time  after  five 
days  from  the  beginning  of  the  first  session  after  his  election.  After 
one  recall  petition  and  election,  no  further  recall  petition  shall  be  filed 
against  the  same  officer  during  the  term  for  which  he  was  elected,  unless 
petitioners  signing  such  petition  shall  first  pay  into  the  public  treasury, 
which  has  paid  such  election  expenses,  all  expenses  of  the  preceding 
election. 

Sec.  6.  The  general  election  laws  shall  apply  to  recall  elections  in 
so  far  as  applicable.  Laws  necessary  to  facilitate  the  operation  of  the 
provisions  of  this  article  shall  be  enacted,  including  provision  for  pay- 
ment by  the  public  treasury  of  the  reasonable  special  election  campaign 
expenses  of  such  officer. 

Is  there  anything  in  these  provisions  violative  either  of  the 
letter  or  the  spirit  of  the  Constitution  or,  if  you  please,  of  the 
terms  of  the  enabling  act?  If  not,  nothing  remains  for  Congress 
to  determine  except  the  single  question  whether  the  necessary 
conditions  exist  in  Arizona  as  to  area,  productivity,  capacity, 
population,  and  the  loyalty  and  good  disposition  of  her  people. 
As  to  this  latter  proposition  no  objection  has  been  raised,  and  I 
shall  confine  myself  to  a  discussion  of  the  question  whether  the 
constitution  of  Arizona  does  in  any  respect  violate  section  4  of 
Article  IV  of  the  Constitution  of  the  United  States;  and  I  main- 
tain, first,  that  no  argument  can  be  found,  either  in  reason  or 
by  analogy,  that  makes  the  Arizona  constitution  providing  for 
the  initiative,  referendum,  and  recall  obnoxious  to  this  or  any 
provision  of  the  Constitution  of  the  United  States;  second,  that 
these  provisions  are  but  the  reservation  of  powers  in  a  written 
constitution  which  have  been  exercised  in  this  country  from  the 
earliest  colonial  times,  and  the  exercise  of  them  has  been  recog- 
nized as  constitutional  by  the  legislative,  judicial,  and  executive 
branches  of  the  Government,  both  State  and  National. 

In  ascertaining  what  the  framers  of  the  Constitution  meant 

when  they  declared  that  Congress  should  guarantee  to  every 

State  a   republican   form   of  government,   resort  must  be   had 

to  the  conditions  which  surrounded  the  administration  of  the 

90455—9841 


8 

governments  of  the  several  Colonies  as  well  as  to  contempo- 
raneous and  subsequent  discussion  and  judicial  decision. 

There  was  nothing  which  preceded  the  Constitutional  Con- 
vention that  could  have  caused  the  framers  of  what  Gladstone 
declared  "the  most  wonderful  work  ever  struck  off  at  a  given 
time  by  the  brain  and  purpose  of  man "  to  fear  to  intrust 
the  people  of  the  States  that  might  thereafter  be  admitted  to 
the  Union  with  the  power  of  governing  themselves,  of  enacting 
their  own  laws,  whether  directly  or  by  representatives  or  by 
the  union  of  both.  Both  of  these  systems,  separately  and  in 
combination,  were  in  vogue  in  the  Colonies  at  the  adoption  of 
the  Constitution,  and  had  been  since  the  earliest  settlement  of 
New  England.  The  Revolutionary  War  had  been  fought  to  a 
successful  conclusion  by  the  participation  of  Colonies  some  of 
which  were  practically  governed  by  the  people  without  more 
than  the  form  of  representative  governments.  If  in  framing 
the  constitutional  provision  under  discussion  its  framers  feared 
to  intrust  the  people  with  all  power,  why  did  they  not  go 
further  and  enjoin,  as  a  condition  of  admission  to  the  Union, 
a  modification  of  the  Constitution  and  laws  of  the  Colonies 
to  the  idea  that  the  people  could  not  be  trusted? 

A  fair  consideration  of  contemporary  literature  and  dis- 
cussion will  lead  to  the  inevitable  conclusion  that  the  fear  that 
animated  the  framers  of  the  Constitution  was  not  the  fear  of 
the  mob  spirit  which  we  hear  so  much  about  in  these  days,  it 
was  not  the  fear  that  the  people  were  incapable  of  self- 
government  or  that  they  could  not  be  trusted  to  legislate  for 
themselves,  but  it  was  a  fear  that  attempts  might  later  be 
made  to  establish  forms  of  government  with  aristocratic  or 
monarchical  tendencies,  and  to  protect  them  from  domestic 
insurrection  or  foreign  invasion. 

The  Declaration  of  Independence  itself  contains  the  severest 
possible  arraignment  of  the  despotism  of  a  monarchy,  and  ex- 
presses absolute  confidence  in  the  people.  There  is  no  sugges- 
tion in  that  remarkable  document  that  the  people  themselves 
were  incapable  of  self-government;  on  the  contrary,  one  of  its 
most  frequently  quoted  provisions  is  that  wherein  it  is  stated 
as  a  self-evident  truth — 

that  all  men  are  created  equal ;  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  rights;  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness;  that  to  secure  these  rights  governments 
are  instituted  among  men,  deriving  their  just  powers  from  the  con- 
gent  of  the  governed  ;  that  whenever  any  form  of  government  becomes 
destructive  of  these  things  it  is  the  right  of  the  people  to  alter  or 
abolish  it  and  to  institute  new  government,  laying  its  foundations  on 
such  principles  and  organizing  its  powers  in  such  form  as  to  them 
shall   seem  most  likely   to  effect   their  safety  and   happiness. 

To  establish  and  maintain  a  government  deriving  its  just 
powers  from  the  consent  of  the  governed  the  Revolution  was 
fought  It  was  a  battle  for  individual  rights  and  individual 
liberty  against  the  despotism  of  monarchy,  and  emerging  from 
the  smoke  of  battle  the  framers  of  the  Constitution  could  only 
have  had  in  mind  the  establishment  of  a  republican  form  of 
government  deriving  its  just  powers  from  the  consent  of  the 
governed  as  contradistinguished  from  a  monarchical  form.  It 
was  upon  this  theory  that  one  of  the  resolutions  submitted  to 
the  convention  by  Edmund  Randolph,  of  Virginia,  was,  after 
some  sliu'ht  amendments,  unanimously  adopted  declaring  it  the 
00455—0841 


duty  of  Congress  to  guarantee  to  every  State  a  republican  form 
of  government. 

As  further  tending  to  prove  that  this  was  the  object  and  pur- 
pose of  the  framers  of  the  Constitution  let  us  recur  to  the 
letter  of  Madison  in  The  Federalist,  edited  by  him  in  conjunc- 
tion with  Hamilton  and  Jay.  In  discussing  the  provision  of  the 
Constitution  now  under  consideration  he  says: 

To  guarantee  to  every  State  in  the  Union  a  republican  form  of  gov- 
ernment, to  protect  each  of  them  against  invasion,  and  on  application 
of  the  legislature  or  of  the  executive  (when  the  legislature  can  not  be 
convened)  against  domestic  violence. 

In  a  confederacy  founded  on  republican  principles  and  composed  of 
republican  members  the  superintending  government  ought  clearly  to 
possess  authority  to  defend  the  system  against  aristocratic  ©r  mo- 
narchical innovations.  The  more  intimate  the  nature  of  such  a  union 
may  be  the  greater  interest  have  the  members  in  the  political  institu- 
tions of  each  other,  and  the  greater  right  to  insist  that  the  forms 
of  government  under  which  the  compact  was  entered  into  should  be 
substantially  maintained.  But  a  right  implies  a  remedy  ;  and  where 
else  could  the  remedy  be  deposited  than  where  it  is  deposited  by  the 
Constitution?  Governments  of  dissimilar  principles  and  forms  have 
been  found  less  adapted  to  a  Federal  coalition  of  any  sort  than  those 
of  kindred  nature.  *  *  *  But  the  authority  extends  no  further 
than  to  a  guaranty  of  a  republican  form  of  government,  which  sup- 
poses a  preexisting  government  of  the  form  which  is  to  be  guaranteed. 
As  long,  therefore,  as  the  existing  republican  forms  are  continued  by 
the  States  they  are  guaranteed  by  the  Federal  Constitution.  Whenever 
the  States  may  choose  to  substitute  other  republican  forms  they  have 
a  right  to  do  so  and  to  claim  the  Federal  guaranty  for  the  latter.  The 
only  restriction  imposed  on  them  is  that  they  shall  not  exchange  repub- 
lican for  antirepublican  constitutions,  a  restriction  which,  it  is  pre- 
sumed, will  hardly  be  considered  as  a  grievance.     (Letter  No.  43.) 

This  letter  was  addressed  to  the  people  of  the  State  of  New 
York  at  a  time  when  the  ratification  of  the  Constitution  by 
that  State  was  under  consideration,  and  by  a  distinguished 
member  of  the  Constitutional  Convention.  Here  is  a  distinct 
declaration  of  the  purposes  of  the  convention  to  authorize 
Congress  to  defend  the  system  of  government  provided  for  by 
the  Constitution  against  aristocratic  or  monarchical  innova- 
tions and  a  right  of  any  State  at  any  time  to  substitute  other 
republican  forms  of  government  not  inconsistent  with  the  gen- 
eral plan  and  their  right  to  claim  a  Federal  guaranty  for  the 
latter,  the  only  restriction  being  that  no  State  should  exchange 
a  republican  for  an  antirepublican  constitution. 

This  statement,  by  so  distinguished  a  statesman  and  one  who 
was  entirely  familiar  with  the  differing  conditions  and  forms  of 
government  in  the  Thirteen  Colonies  prior  to  and  at  the  time 
when  the  Constitution  was  being  framed  in  convention,  is  en- 
titled to  the  greatest  weight  in  attempting  to  arrive  at  the  pur- 
poses of  the  convention  in  framing  the  section  thereof  under  con- 
sideration;  and  it  must  therefore  be  taken  in  connection  with 
the  conditions  and  forms  of  government  as  they  existed  in  the 
Colonies  before  and  at  the  time  of  the  convention. 

In  this  connection  it  is  proper  to  call  attention  to  some  of 
the  constitutions  and  bills  of  rights  of  the  Colonies  prior  to  the 
formation  of  the  Federal  Constitution. 

The  North  Carolina  bill  of  rights  of  1770  declares: 

1.  That  all  political  power  is  vested  in  and  derived  from  the  people 
only. 

The  Virginia  bill  of  rights  of  177G  declares : 

Section  1.  That  all  men  are  by  nature  equal,  free,  and  independent, 
and  have  certain  inherent  rights,  of  which,  when  they  enter  into  a 
state  of  society,  they  can  not  by  any  compact  deprive  or  divest  their 
90455—9841 


10 

posterity,  namely,  the  enjoyment  of  life  and  liberty,  with  the  means  of 
acquiring  and  possessing  property  and  pursuing  and  obtaining  happiness 
and  safety. 

Sec.  2.  That  all  power  is  vested  in,  and  consequently  derived  from, 
the  people. 

The  Maryland  bill  of  rights  of  1T7G  says: 

1.  That  all  government  of  right  originates  from  the  people,  is 
founded  in  compact  only,  and  instituted  solely  for  the  good  of  the 
whole. 

The  Pennsylvania  bill  of  rights  of  1776  declares: 
III.  That  the  people  of  this  State  have  the  sole,  exclusive,  and  in- 
herent   right   of   governing   and    regulating   the    internal    police   of   the 
same. 

The  New  York  bill  of  rights  of  1777  declares : 
I.  This  convention,  therefore,  in  the  name  and  by  the  authority  of 
the  good  people  of  this  State,  doth  ordain,  determine,  and  declare  that 
no  authority  shall,  on  any  pretense  whatever,  be  exercised  over  the 
people  or  members  of  this  State  but  such  as  shall  be  derived  from  and 
granted  by  them. 

The  Connecticut  constitution  of  1777  declares: 
That  the  ancient  form  of  civil  government,  contained  in  the  charter 
from  Charles  the  Second,  King  of  England,  and  adopted  by  the  people 
of  this  State,  shall  be  and  remain  the  civil  constitution  of  this  State, 
under  the  sole  authority  of  the  people  thereof,  independent  of  any 
king  or  prince  whatever.  And  that  this  Republic  is.  and  shall  forever 
bo  and  remain,  a  free,  sovereign,  and  independent  State,  by  the  name 
of  the  State  of  Connecticut. 

The  first  constitution  submitted  in  Massachusetts  was  re- 
jected by  the  people  by  direct  vote  at  town  meetings  in  the 
spring  of  1779,  because  it  contained  no  bill  of  rights,  and  for 
other  reasons.  The  next  constitution  submitted,  that  of  17 SO, 
the  people  adopted  by  direct  vote  at  town  meetings  and  by  more 
than  two-thirds  of  all  who  voted.    The  bill  of  rights  declares: 

Article  I.  All  men  are  born  free  and  equal,  and  have  certain  natural, 
essential,  and  inalienable  rights;  among  which  may  be  reckoned  the 
right  of  enjoying  and  defending  their  lives  and  liberties ;  that  of  ac- 
quiring, possessing,  and  protecting  property;  in  fine,  that  of  seeking 
and  obtaining  their  safety  and  happiness. 

Airr.  IV.  The  people  of  this  Commonwealth  have  the  sole  and  ex- 
clusive right  of  governing  tbemselves  as  a  free,  sovereign,  and  inde- 
pendent State,  and  do,  and  forever  shall,  exercise  and  enjoy  every 
power,  jurisdiction,  and  right  which  is  not,  or  may  not  hereafter  be,  by 
them  expressly  delegated  to  the  United  States  of  America  in  Congress 
assembled. 

In  New  Hampshire  four  constitutions  were  submitted  to  the 
people,  who  voted  directly  upon  them  at  town  meetings.  The 
first  three  were  rejected  (American  Political  Science  Review, 
Vol.  II,  p.  540),  largely  because  there  were  no  express  limita- 
tions upon  the  power  of  the  legislature— no  bill  of  rights.  The 
bill  of  lights  of  the  fourth  one,  that  of  1784,  declares: 

VII.  The  people  of  this  State  have  the  sole  and  exclusive  right  of 
governing  themselves  as  a  tree,  sovereign,  and  independent  State,  and 
do,  and  forever  hereafter  shall,  exercise  end  enjoy  every  power,  juris- 
diction, and  right  pertaining  thereto  which  is  not  or  may  not  hereafter 
be  l.y  them  expressly  delegated  to  the  United  States  of  America  in 
Congress  assembled. 

The  Vermont  Constitution  of  1777  declares: 

IV.  That  the  people  <>f  this  Stale  have  the  sole,  exclusive,  and  In- 
herent right  of  governing  and  regulating  the  internal  police  of  the 
same. 

The  nvw  Jersey  constitution  of  1770  declares: 

Where*!  nil  the  constitutional  authority  ever  possessed  by  the  Kings 

of  Great  Britain  over  these  colonies  or  their  other  dominioni  was,  by 
compact,  derived   from  the  people  and   held  of  them  for  the  common 
00455—9841 


11 

interest  of  the  whole  society,  allegiance  find  protection  are.  in  the 
nature  of  things,  reciprocal  lies,  each  equally  depending  upon  the  other 
and  liable  to  he  dissolved  hy  the  others  being  refused  or  withdrawn. 
And  whereas  George  III,  King  of  Great  Britain,  has  refused  protec- 
tion to  the  good  people  of  these  Colonies,  and,  hy  assenting  to  sundry 
acts  of  the  British  Parliament,  attempted  to  suhject  them  to  the  ahsoluto 
dominion  of  that  body,  and  has  also  made  war  upon  them  in  the  most 
cruel  and  unnatural  manner  for  no  other  cause  than  asserting  their 
just  rights,  all  civil  authority  under  him  is  necessarily  at  an  end  and 
a  dissolution  of  government  in  each  Colony  has  consequently  taken 
place. 

The  South  Carolina  constitution  of  1776  declares: 
I.  That   this   congress,   being  a   full   and   free   representation   of   the 
people  of  this  Colony,  shall  henceforth  be  deemed  and  called  the  Gen- 
eral Assembly  of  South  Carolina,  and  as  such  shall  continue  until  the 
21st  day  of  October  next,  and  no  longer. 

The  Georgia  constitution  of  1777  declares: 

"We,  therefore,  the  representatives  of  the  people,  from  whom  all 
power  originates,  and  for  whose  benefit  all  government  Is  Intended,  by 
virtue  of  the  power  delegated  to  us,  do  ordain  and  declare,  and  it  is 
hereby  ordained  and  declared,  that  the  following  rules  and  regulations 
be  adopted  for  the  future  government  of  this  State. 

It  will  be  seen  from  these  excerpts  from  the  bills  of  rights 
and  constitutions  of 'the  several  Colonies,  each  and  all  of  which 
must  have  been  in  the  minds  of  the  framers  of  the  Federal 
Constitution,  that,  far  from  entertaining  any  fear  of  the  people, 
there  was  an  expression  of  absolute  confidence  in  them  in  each 
of  the  Colonies  as  the  source  from  which  all  power  had  its 
origin.  Many  of  the  Colonies  had  been  governed  as  pure 
democracies,  the  people  legislating  directly  at  town  meetings 
held  for  that  purpose  and  electing  as  well  as  instructing  those 
who  were  to  assist  in  administering  the  laws  of  their  own 
making. 

The  representative  idea  was  one  of  gradual  evolution.  There 
was  no  sudden  change  from  a  pure  democracy  to  a  representa- 
tive form  of  government.  There  has  never  been  a  time  when 
the  governments,  either  of  the  Colonies  or  the  States,  were  en- 
tirely representative.  On  the  contrary,  with  the  gradual  trend 
toward  the  representative  system  the  direct  system  remained 
intact  for  many  years  after  the  adoption  of  the  Constitution, 
and  it  has  never  yet  been  entirely  abolished  in  any  of  the 
States.  Always  the  tendency  was,  even  in  the  most  typically 
representative  forms  of  government,  to  make  the  representatives 
or  agents  of  the  people  directly  responsive  to  the  popular  will. 
I  shall  show  later  that  so  long  as  these  representatives  or  agents 
of  the  people  were  acting  in  truth  and  in  fact  as  their  repre- 
sentatives, the  people  were  satisfied  with  the  transference  of  a 
part  of  the  power  which  they  had  formerly  exercised  under 
constitutional  limitations  and  restrictions  to  representatives,  but 
when  these  agents  began  to  reach  a  point  where  they  ignored 
the  popular  will,  were  no  longer  responsive  thereto,  but  re- 
sponded rather  to  the  dictation  of  the  political  machine  and  the 
corrupt  party  boss,  the  pendulum  began  to  swing  in  the  oppo- 
site direction,  and  checks  began  to  be  devised  against  legislative 
and  representative  usurpation.  What  was  once,  in  part  at  least, 
a  representative  form  of  government,  has  become  a  misrepre- 
sentative  form  of  government,  and  in  a  determination  to  correct 
this  the  initiative,  the  referendum,  and  the  recall  had  their 
origin. 

The  Arizona  constitution  and  the  constitutions  of  other  States 
from  which  it  was  copied  are  not  an  enlargement  of  the  powers 

90455—9841 


12 

which  were  exercised  hy  the  people  of  the  Colonies  in  the  regu- 
lation of  their  affairs,  but  it  is  a  resumption  or  rather  the  asser- 
tion of  powers  which  had  become  dormant  by  nonuse,  by  em- 
bodying them  in  the  fundamental  law — the  written  constitution. 
If  there  be  any  difference  the  powers  of  the  people  under  the 
colonial  forms  of  government  were  more  ample  and  more  fre- 
quently used  for  restraining  the  acts  of  their  representatives 
than  any  power  attempted  to  be  reserved  to  or  exercised  by  the 
people  of  Arizona  under  the  constitution  to  which  objection  is 
now  made. 

I  have  undertaken  briefly  to  call  attention  to  conditions  as 
they  existed  in  the  Colonies  prior  to  the  adoption  of  the  Con- 
stitution and  to  contemporaneous  interpretation  of  the  provision 
now  under  consideration  as  to  its  purposes  and  as  to  the  intent 
of  its  framers.  Let  us  look  now  at  the  interpretation  placed 
upon  it  by  later  text  writers  and  courts. 

Sutherland,  in  his  Notes  on  the  United  States  Constitution 
(p  G03),  says  that— 

The  distinguishing  feature  of  the  republican  form  of  government  is 
the  right  of  the  people  to  choose  their  own  officers  for  governmental 
administration  and  to  pass  their  own  laws;  by  virtue  of  the  legislative 
power  reposed  in  representative  bodies  and  by  the  adoption  of  a  con- 
stitution the  people  limit  their  own  power  as  against  the  sudden  im- 
pulses of  mere  majorities.  The  State  here  referred  to  is  a  member  of 
the  Union,  an  organized  people  or  a  community  of  free  citizens,  occupy- 
ing a  definite  territory.  The  provision  does  not  undertake  to  designate 
any  particular  government  as  republican,  nor  is  the  exact  form  in  any 
manner  especially  indicated. 

Justice  Story,  in  his  work  on  the  Constitution  (Vol.  II,  sec. 
1814),  in  giving  the  reasons  for  this  provision  of  the  Constitu- 
tion, says: 

The  want  of  a  provision  of  this  nature  was  felt  as  a  capital  defect 
In  the  plan  of  the  confederation,  as  it  might  in  its  consequences  en- 
danger, if  not  overthrow,  the  Union.  Without  a  guaranty  the  assist- 
ance to  be  derived  from  a  national  government  in  repairing  domestic 
dangers  which  might  threaten  the  existence  of  the  State  constitutions 
could  not  be  demanded  as  a  right  from  the  National  Government. 
Usurpation  might  raise  its  standard  and  trample  upon  the  liberties  of 
the  people,  while  the  National  Government  could  legally  do  nothing 
more  than  behold  the  encroachment  with  indignation  and  regret.  A 
successful  faction  might  erect  a  tyranny  on  the  ruins  of  order  and  law, 
while  no  succor  could  be  constitutionally  afforded  by  the  Union  to  the 
friends  and  supporters  of  the  Government.  But  this  is  not  all ;  the 
destruction  of  the  National  Government  itself  or  of  neighboring  States 
might  result  from  a  successful  rebellion  In  a  single  State. 

It  will  thus  be  seen  that  this  eminent  jurist  did  not  suggest 
that  there  was  any  fear  on  the  part  of  the  framers  of  the  Con- 
stitution that  there  was  danger  to  be  apprehended  from  the  peo- 
ple because  of  the  exercise  of  those  powers  which  were  inherent 
in  them  as  sovereigns,  or  that  the  exercise  of  legislative  or 
other  power  by  them  would  make  their  Government  unre- 
publican  in  form.  The  reasons  given  by  him  for  the  enactment 
of  the  constitutional  provision  were  based  on  the  dangers  to  be 
apprehended  from  internal  usurpation  or  external  invasion — i 
In  other  words,  the  establishment  through  these  instrumentali- 
ties of  a  form  of  government  inconsistent  with  those  which 
were  in  force  in  the  Colonies  at  the  time  of  the  adoption  of  the 
Constitution. 

This  view  is  further  strengthened  by  Judge  Story  in  section 
181$  where  he  says: 

That  the   Federalist   has  spoken  with   so   much  force  and  propriety 
upon  this  subject  that  it  supersedes  all  further  reasoning — 
00455—0841 


13 

and  (hen  quotes  the  letter  of  Mr.  Madison  to  the  people  of  New 
York,  which  is  heretofore  referred  to  at  length.  Adopting  the 
reasoning  of  that  letter  as  his  own,  he  states,  after  quoting  it 
at  length : 

It  may  not  be  amiss  further  to  observe  (in  the  language,  of  another 
commentator)  that  every  pretext  for  intermeddling  with  the  domestic 
concerns  of  any  State  under  color  of  protecting  it  against  domestic 
violence  is  taken  away  by  that  part  of  the  provision  which  renders  an 
application  from  the  legislature  or  executive  authority  of  the  State 
in  ihmger  necessary  to  be  made  to  the  General  Government  before  ibis 
interference  can  be  at  all  proper.  On  the  other  hand,  this  article 
becomes  an  immense  acquisition  of  strength  and  additional  force  to  the 
aid  of  any  State  government  in  case  of  an  internal  rebellion  or  in- 
surrection against  lawful   authority. 

Here  again  is  the  suggestion  that  Congress  can  not  take  the 
initiative,  even  in  cases  of  domestic  violence.  The  initiative 
must  be  taken  and  the  application  made  by  the  legislative  or 
executive  authority  of  the  State. 

Mr.  George  Ticknor  Curtis,  in  his  Constitutional  History  of 
the  United  States  (Vol.  I,  p.  363),  states: 

The  object  of  this  provision  was  to  secure  to  the  people  of  each 
State  the  power  of  governing  their  community  through  the  action  of 
a  majority,  according  to  the  fundamental  rules  which  they  might 
prescribe  for  ascertaining  the  public  will. 

Nowhere  have  I  been  able  to  find  a  suggestion  that  this  pro- 
vision was  intended  to  curb  the  people  in  the  adoption  of  con- 
stitutions and  in  the  enactment  of  laws,  whether  directly  or 
indirectly,  within  the  several  States  which  might  seem  to  them 
best  to  conserve  and  preserve  their  liberties  and  their  rights. 
They  have  the  undoubted  right  at  any  time  to  change  their 
fundamental  law  to  suit  their  own  needs,  so  long  as  the  form  of 
government  adopted  by  them  is  republican  in  form. 

That  distinguished  Democrat  and  authority  on  constitutional 
law,  John  Randolph  Tucker,  in  his  work  on  the  United  States 
(Vol.  II,  sec.  311),  says: 

The  word  "guarantee"  does  not  mean  "to  form,"  "to  establish," 
"to  create";  it  means  "to  warrant,"  "to  secure,"  "to  protect"  the 
State — that  is,  the  body  politic — in  its  right  to  have  a  republican  form 
of  government.  It  defends  the  people  against  the  interference  of  any 
foreign  power  or  of  any  intestine  conspiracy  against  its  right  as  a 
body  politic  to  establish  for  itself  republican  forms  of  government. 
To  allow  the  guarantor  to  take  the  initiative  and,  under  the  pretext 
of  its  duty  as  guarantor,  to  impose  a  form  of  government  upon  the 
people  of  a  State  would  make  this  clause,  intended  for  protection,  an 
excuse  for  destructive  invasion.  No  occasion  for  the  exercise  of  this 
important  yet  dangerous  power  has  ever  arisen  except  as  the  result 
of  civil  war. 

The  supreme  court  of  Oklahoma,  whose  constitution  is  sub- 
stantially the  same  as  that  of  the  proposed  constitution  of 
Arizona,  in  ex  parte  Wagner  (21  Okla.,  33),  sustained  the 
constitution  of  that  State  as  not  obnoxious  to  the  Federal  Con- 
stitution guaranteeing  to  every  State  a  republican  form  of  gov- 
ernment. 

Mr.  Justice  Wilson,  who  was  a  member  of  the  Constitu- 
tional Convention  and  was  later  a  member  of  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Chisholm  v.  Georgia 
(2  Dall.,  419),  speaking  of  what  constituted  a  republican 
form  of  government,  said: 

As  a  citizen  I  know  the  government  of  that  State  [ Georgia  1  to  be 
republican,  and  my  short  detinition  of  such  a  government  is  one  con- 
structed on  this  principle,  that  the  supreme  power  resides  in  the  body 
of  the  people. 

90455—9841 


u 

It  should  be  remembered  in  connection  with  this  decision 
that  Mr.  Justice  Wilson  was  considered  one  of  the  ablest  con- 
stitutional lawyers  in  the  convention  which  framed  the  Consti- 
tution, and  it  was  he  who  proposed  the  amendment  to  the 
resolution  of  Gov.  Randolph  which  resulted  in  the  unanimous 
adoption  of  the  section  of  the  Constitution  as  it  now  stands. 

The  Supreme  Court  of  the  United  States,  In  re  Duncan  (139 
U.  S.,  449),  holds  that  the  distinguishing  feature  of  a  repub- 
lican form  of  government  is  the  right  of  the  people  to  choose 
officers  for  governmental  administration  and  to  pass  their  own 
laws:  and  in  Miner  v.  Happersett  (21  Wall.,  1G2),  in  speaking 
of  this  provision  of  the  Constitution,  says: 

It  is  true  that  the  United  States  guarantees  to  every  State  a  repub- 
lican form  of  government.  *  *  *  No  particular  government  is  des- 
ignated as  republican,  neither  is  the  exact  form  to  be  guaranteed  in 
anv  manner  especially  designated.  *  *  *  The  guaranty  necessarily 
implies  the  duty  on  the  part  of  the  States  themselves  to  supply  such 
a  government.  All  the  States  had  governments  when  the  Constitution 
was  adopted.  *  *  *  These  governments  the  Constitution  did  not 
change.  They  are  accepted  precisely  as  they  were,  and  it  is  therefore 
to  be  presumed  that  thev  were  such  as  it  was  the  duty  of  the  States 
to  provide.  Thus  we  have  unmistakable  evidence  of  what  was  repub- 
lican in  form  within  the  meaning  of  that  term  as  employed  in  the 
Constitution. 

The  supreme  court  of  California,  In  re  Pfahler  (150  Cal., 
171),  where  a  similar  attack  was  made  upon  the  charter  of  the 
city  of  Los  Angeles,  held  to  substantially  the  same  doctrine, 
overruling  former  decisions  of  the.  court  which  seemed  to  main- 
tain a  different  view. 

In  Kadderly  v.  The  City  of  Portland  (44  Oreg.,  118)  the  initia- 
tive and  referendum  amendment  to  the  constitution  of  that 
State,  which  is  on  all  fours  with  the  constitution  of  Arizona, 
and  which  was  attacked  because  it  violated  the  provision  of 
the  Constitution  now  under  consideration,  Mr.  Justice  Bean,  a 
judge  of  distinguished  ability,  who  was  subsequently  appointed 
one  of  the  United  States  circuit  judges,  delivering  the  opinion 
of  the  court,  said: 

Nor  do  we  think  the  amendment  void  because  in  conflict  with  the 
Constitution  of  the  United  States,  Article  IV,  section  4,  guaranteeing 
to  every  State  a  republican  form  of  government.  The  purpose  of  this 
provision  of  the  Constitution  is  to  protect  the  people  of  the  several 
States  against  aristocratic  and  monarchical  invasions  and  against  insur- 
rections and  domestic  violence  and  to  prevent  them  from  abolishing  a 
republican  form  of  government.  (Coolev,  Const.  Lim.,  7  ed.,  45 ;  2 
Story,  Const.,  5  ed.,  sec.  1815.)  But  it  does  not  forbid  them  from 
anu'iiding  or  changing  their  constitution  in  any  way  they  may  see  fit, 
bo  long  as  none  of  these  results  is  accomplished.  No  particular  style 
of  government  is  designated  in  the  Constitution  as  republican,  nor  is 
its  exact  form  in  any  way  prescribed.  A  republican  form  of  govern- 
ment is  a  government  administered  by  representatives  chosen  or  ap- 
pointed by  tho  people  or  by  their  authority.  Mr.  Madison  says  it  is 
"a  govorniin-ut  which  derives  all  its  powers  directly  or  indirectly  from 
the  great  body  of  the  people,  and  is  administered  by  persons  holding 
their  offices  during  pleasure,  for  a  limited  period,  or  during  good  be- 
havior." (The  Federalist,  ."02. )  And  in  discussing  the  section  of  the 
Constitution  of  the  United  States  now  under  consideration  he  says: 
"  Hut  tbo  authority  extends  no  further  than  a  guaranty  of  a  repub- 
lican form  of  government,  which  supposes  a  preexisting  government 
of  the  form  which  is  to  be  guaranteed  by  the  Federal  Constitution. 
Whenever  the  States  may  choose  to  substitute  other  republican  forms, 
they  have  a  right  to  do  so,  and  to  claim  the  Federal  guaranty  for  the 
latter.  The  only  restriction  imposed  on  them  is  that  they  shall  not 
exchange  republican  for  antirepublican  constitutions."  (Tho  Federalist, 
842.)  Now.  the  initiative  and  referendum  amendment  does  not  abolish 
or  destroy  the  republican  form  of  government  or  substitute  another  in 
its  place.  The  representatire  character  of  the  government  still  remains. 
00155—9841 


15 

The  people  have  simply  reserved  to  themselves  a  larger  share  of  legis- 
lative power,  but  they  have  not  overthrown  the  republican  form  of  the. 
government  or  substituted  another  in  its  place.  The  government  is 
still  divided  into  the  legislative,  executive,  and  judicial  departments, 
the  duties  of  which  are  discharged  by  representatives  selected  by  the 
people. 

8.  Under  this  amendment,  it  is  true,  the  people  may  exercise  a  legis- 
lative power,  and  may,  in  effect,  veto  or  defeat  bills  passed  and  ap- 
proved by  the  legislature  and  the  governor;  but  the  legislative  and 
executive  departments  are  not  destroyed,  nor  are  their  powers  or  au- 
thority materially  curtailed.  Laws  proposed  and  enacted  by  the  people 
under  the  initiative  clause  of  the  amendment  are  subject  to  the  same 
constitutional  limitations  as  other  statutes,  and  may  be  amended  or 
repealed  by  the  legislature  at  will. 

In  the  case  of  Kiernan  v.  City  of  Portland  (111  Tac.  Rep., 
379)  the  same  court,  speaking  through  Judge  King,  again  up- 
held the  Oregon  system  of  direct  legislation  as  not  obnoxious  to 
the  Constitution  of  the  United  States,  and,  amongst  other  things, 
say: 

It  Is  difficult  to  conceive  of  any  system  of  lawmaking  coming  nearer 
to  the  great  body  of  the  people  of  the  entire  State,  or  by  those  com- 
prising the  various  municipalities,  than  that  now  in  use  here,  and  being 
so  we  are  at  a  loss  to  understand  how  the  adoption  and  use  of  this 
system  can  be  held  a  departure  from  a  republican  form  of  government. 
It  was  to  escape  the  oppression  resulting  from  governments  controlled 
by  the  select  few,  so  often  ruling  under  the  assumption  that  "  might 
makes  right,*'  that  gave  birth  to  republics.  Monarchical  rulers  refuse 
to  recognize  their  accountability  to  the  people  governed  by  them.  In  a 
republic  the  converse  is  the  rule ;  the  tenure  of  office  may  be  for  a  short 
or  a  long  period,  or  even  for  life,  yet  those  in  office  are  at  all  times 
answerable,  either  directly  or  indirectly,  to  the  people,  and  in  propor- 
tion to  their  responsibility  to  those  for  whom  they  may  be  the  public 
agents,  and  the  nearer  the  power  to  enact  laws  and  control  public 
servants  lies  with  the  great  body  of  the  people,  the  more  nearly  does  a 
government  take  unto  itself  the  form  of  a  republic — not  in  name  alone, 
but  in  fact.  From  this  it  follows  that  each  republic  may  differ  in  its 
political  system,  or  in  the  political  machinery  by  which  it  moves,  but 
so  long  as  th?  ultimate  control  of  its  officials  and  affairs  of  state  remains 
in  its  citizens  it  will,  in  the  eye  of  all  republics,  be  recognized  as  a 
government  of  that  class.  Of  this  we  have  many  examples  in  Central 
and  South  America. 

It  becomes,  then,  a  matter  of  degree,*  and  the  fear  manifested  by  the 
briefs  filed  in  this  case  would  seem  to  indicate,  not  that  we  are  drifting 
from  the  secure  moorings  of  a  republic,  but  that  our  State,  by  the 
direct  system  of  legislation  complained  of,  is  becoming  too  democratic, 
advancing  too  rapidly  toward  a  republic  pure  in  form.  This,  it  is  true, 
counsel  for  petitioner  does  not  concede,  but  under  any  interpretation 
of  which  the  term  is  capable,  or  from  any  view  thus  far  found  ex- 
pressed in  the  writings  of  the  prominent  statesmen  who  were  members 
of  the  Constitutional  Convention,  or  who  figured  in  the  early  upbuilding 
of  the  Nation,  it  follows  that  the  system  here  assailed  brings  us  nearer 
to  a  State  republican  in  form  than  before  its  adoption. 

In  the  case  of  Hopkins  v.  The  City  of  Duluth  (81  Minn.,  189) 
the  charter  of  Duluth  had  been  submitted  to  the  direct  vote  of 
the  citizens  and  adopted.  It  was  subsequently  assailed  because 
it  was  violative  of  section  4  of  Article  IV  of  the  Federal  Con- 
stitution. This  contention  was  not  sustained,  and  the  court 
held: 

The  provision  referred  to  provides  that  "  the  United  States  shall 
guarantee  to  every  State  a  republican  form  of  government  and  protect 
them  from  invasion,"  etc.  The  purpose  of  this  guaranty  was  to  pro- 
tect a  union  founded  upon  republican  principles  against  aristocratic  and 
monarchical  invasions.  *  *  *  It  will  be  admitted,  however,  that  this 
State  can  not  supplant  its  republican  form  of  government  by  "  aristo- 
cratic and  monarchical  invasions "  upon  principles  inherent  in  the 
nature  of  a  government,  but  it  may  change  its  constitution  in  any  way 
consistent  with  its  own  fundamental  law  ;  and  we  are  unable  to  see 
the  force  of  the  suggestion  that  the  amendment  of  1898  is  not  repub- 
lican in  form  as  well  as  in  spirit.  It  is  true  that,  by  the  submission  of 
charters  and  amendments  to  municipalities  in  the  manner  provided  for 
90455—0841  v 


16 

by  the  amendment,  a  change  is  effected,  but  it  is  a  change  that  by  every 
historical  sanction  from  the  earliest  times  is  republican  in  form  and 
essence.  The  Federal  as  well  as  the  State  government  is  representative 
in  character,  and  the  people  do  not  directly  vote  upon  the  adoption  of 
the  laws  by  which  they  are  governed.  Yet  it  can  not  be  said  that,  if 
they  were  able  to  do  so,  a  provision  to  effectuate  that  purpose  would 
not  be  republican.  *  *  *  The  test  of  republican  or  democratic  gov- 
ernment is  the  will  of  the  people,  expressed  in  majorities,  under  the 
proper  forms  of  law.  Every  proposal  for  a  change  of  government  must 
of  necessity  he  submitted,  either  directly  or  indirectly,  through  a  desig- 
nated origin,  whether  it  be  upon  the  motion  of  one  or  of  more  persons, 
upon  the  instance, of  an  individual  citizen  or  a  number;  but  so  long  as 
the  ultimatum  of  decision  is  left  to  the  will  of  the  people  at  the  ballot 
box  it  is  essentially  republican,  and  the  theoretical  distinction  urged 
by  the  learned  counsel  for  the  contestee  practically  amounts  to  no  more 
than  the  argument  that  the  change  provided  for  is  new  and  radical.  It 
may  turn  out  that  the  amendment  is  beneficial  or  otherwise,  yet  its 
tendencies  are  clearly  republican,  and  must  be  upheld  by  this  court. 

The  coordinate  branches  of  the  National  Government — the  ex- 
ecutive, legislative,  and  judicial — as  well  as  those  of  the  State 
governments,  have  recognized  that  the  government  proposed  to 
be  established  under  the  Arizona  constitution  is  republican  in 
form.  The  Arizona  constitution  is  almost  in  ipsis  verbis  of  the 
constitutions  of  Oregon,  Montana,  South  Dakota,  and  Oklahoma, 
in  each  of  which  the  popular  initiative  and  the  optional  referen- 
dum,'and  in  some  of  them  the  recall,  make  more  effective  the 
voice  of  the  people  and  operate  as  checks  and  balances  against 
legislative  malfeasance,  corruption,  and  misrule. 

Oklahoma  was  admitted  to  the  Union  with  these  provisions 
in  the  constitution,  and  Congress  recognized  that  it  was  repub- 
lican in  form  by  admitting  it  to  the  Union,  and  the  President  by 
proclamation,  carrying  out  the  resolution  of  Congress  in  that 
behalf,  declared  that  the  constitution  of  Oklahoma  was  repub- 
lican in  form. 

And  again,  after  the  adoption  by  the  people  of  Oregon,  Mon- 
tana, and  South  Dakota  of  amendments  to  their  constitutions 
putting  into  effect  the  provisions  which  it  is  claimed  are  ob- 
noxious to  the  Federal  Constitution,  the  Senators  and  the  Rep- 
resentatives from  these  States,  as  well  as  from  Oklahoma,  have 
been  admitted  to  their  seats  without  question ;  and  this  consti- 
tuted a  recognition  by  Congress  that  these  States  had  republican 
forms  of  government. 

Sutherland,  in  the  work  referred  to,  restates,  at  page  604,  a 
well-established  rule  on  this  subject  when  he  says  that : 

Recognition  of  a  State  government,  as  well  as  its  republican  char- 
acter, is  necessarily  implied  from  the  admission  of  its  Senators  and 
Representatives   to   seats   in   Congress,   citing   Cnited   States  r.    Rhodes 

i!7    Fed    Cases,    10151),    White   v.    Hart    (13    Wall..    G4G),    Luther    v. 
torden  (7  How.,  1)  as  authority  for  the  doctrine  enunciated  In  the  text. 

Legislative  and  executive  interpretations  are  entitled  to  great 
weight,  under  well-established  rules  of  law,  in  construing  stat- 
utes and  constitutions. 

I  maintain  that  the  standard  by  which  the  Congress  is  to  de- 
termine whether  or  not  the  constitution  presented  by  a  people 
asking  admission  as  a  State  is  that  the  constitution  shall  con- 
Junii  in  its  essential  details  to  the  governments  that  were  iu 
existence  at  the  time  of  the  adoption  of  the  Constitution,  and, 
applying  that  as  the  rule  and  guide  of  action,  the  constitution 
ited  hy  the  people  of  Arizona  is  republican  in  form  because 
It  is  conformable  in  all  essential  details  to  the  forms  of  gov- 
ernment and  method*  of  administration  in  many,  at  least,  of 
the  (ninnies  :it  the  time  of  the  adoption  of  the  Constitution. 
00-155—0841 


17 

If  a  higher  duty  than  this  devolves  upon  the  Congress  of  the 
United  States,  where  is  that  duty  to  begin  and  end?  If  they 
have  power  to  take  the  initiative  and,  taking  the  constitution 
of  Arizona  hy  its  four  corners,  modeled  as  it  has  been  after  the 
constitutions  which  are  in  force  in  older  States,  say  that  it  is 
not  republican  in  form,  can  the  Congress  then  go  farther  and 
demand  that  those  States  which  have  constitutions  amended 
and  are  now  exact  counterparts  of  the  Arizona  constitution 
shall  amend  these  constitutions  again,  shall  undo  the  work  of 
the  constitutional  conventions,  shall  nullify  laws  that  have  been 
enacted  by  legislature  and  people,  because  the  Congress  of  the 
United  States  is  of  the  opinion  that  these  particular  constitu- 
tions are  not  republican  in  form? 

How  is  the  Congress  to  exercise  this  power  of  nullifying  the 
constitutions  of  these  States?  Where  is  the  modus  operandi 
pointed  out  in  the  Constitution?  Is  it  to  be  done  by  an  act  of 
Congress,  or  is  it  to  be  done  by  the  declaration  of  war  against 
a  State  that  refuses  to  nullify  its  constitution  and  to  adopt  one 
that  may  be  consonant  with  the  views  of  Congress  as  to  what, 
in  its  opinion,  constitutes  a  republican  form  of  government? 
The  suggestion  of  the  proposition  carries  its  own  refutation, 
and  Congress  has  no  such  power. 

If  Congress  determines  that  the  constitution  adopted  by  the 
people  of  Arizona  is  not  republican  in  form  because  of  the  pro- 
visions in  regard  to  the  initiative,  the  referendum,  and  the 
recall,  what  does  Congress  intend  to  do  with  reference  to  South 
Dakota,  Oregon,  Montana,  Arkansas,  and  a  number  of  the  older 
States  which  have  amended  their  constitutions  in  these  respects 
since  their  admission  to  the  Union;  and  what  is  it  to  do  with 
reference  to  Oklahoma,  whose  constitution  has  met  the  approval 
of  Congress,  of  the  President,  and  the  court  of  last  resort  in 
that  State? 

Having  discussed  the  intent  of  the  framers  of  the  Constitu- 
tion with  reference  to  section  4  of  Article  IV  of  the  Constitution 
in  the  light  of  contemporaneous  discussion  and  subsequent  ex- 
ecutive, legislative,  and  judicial  interpretation,  I  desire  to  show 
that  there  is  nothing  new  in  the  initiative,  the  referendum,  and 
the  recall  to  which  objection  is  now  made,  and  in  the  discussion 
of  this  question  I  do  not  deem  it  necessary  to  trace  the  genesis 
of  either  or  to  show  the  method  of  their  development  and  ap- 
plication in  any  of  the  Old  World  governments.  I  shall  confine 
myself  to  our  own  country,  where  abundant  warrant  can  be 
found  to  sustain  the  position  that  the  doctrine  embodied  in  the 
Arizona  constitution  is  not  a  new  one. 

And,  first,  as  to  the  initiative.  It  will  be  observed  that  no 
attempt  is  made  to  abolish  the  Legislature  of  Arizona  under  the 
provisions  of  the  Constitution;  it  is  left  intact,  with  all  the 
powers  that  are  usually  given  to  the  legislative  body  under  the 
provisions  of  the  constitutions  of  the  other  States  of  the  Union. 
To  that  extent,  therefore,  the  government  sought  to  be  estab- 
lished, in  so  far  as  the  legislature  is  concerned,  is  distinctly  repre- 
sentative in  form,  but  the  people  reserve  to  themselves  two  dis- 
tinct powers  and  point  out  the  mode  and  manner  of  the  exercise 
thereof,  one  of  which  it  might  truthfully  be  said  is  for  the  cor- 
rection of  sins  of  omission  and  the  other  for  the  correction  of 
those  of  commission,  namely :  First,  they  reserve  to  themselves 
the  power  to  initiate  laws  and,  concurrently  with  the  legislature, 
90455—9841 2 


18 

to  enact  or  reject  by  their  vote  such  laws  as  may  be  so  proposed ; 
second,  they  reserve  to  themselves  the  power,  at  their  option 
and  upon  proper  steps  being  first  taken,  to  have  referred  to 
them  for  approval  or  rejection  any  law  or  laws  passed  by  the 
legislature.  The  system  proposed  by  the  Arizona  constitution, 
and  which,  as  I  have  stated,  is  modeled  after  the  amended  con- 
stitutions of  Oregon  and  other  of  the  older  States,  is  not  unlike 
the  system  of  government  that  was  in  vogue  in  New  England 
at  and  prior  to  the  time  of  the  adoption  of  the  Constitution. 
There  the  people  legislated  directly  upon  local  affairs,  whilst  in 
State  affairs  legislation  was  through  a  legislative  assembly  di- 
rectly elected,  each  member  of  which  was  under  instructions 
given  by  his  constituents  at  special  town  meetings,  which  could 
be  at  any  time  called  by  the  selectmen  or  any  10  citizens.  In 
other  of  the  Colonies  legislation  was  had  by  the  legislative  as- 
sembly and  by  county  governments,  and  in  both  cases  the  mem- 
bers were  instructed  at  county  conferences  or  mass  meetings 
of  the  citizens. 

I  have  already  referred  to  and  quoted  from  the  bills  of  rights 
and  constitutions  of  a  number  of  the  States  antedating  the 
adoption  of  the  Constitution  to  show  that  sovereignty  resided  in 
the  people,  and  that  this  fact  wTas  of  necessity  in  the  minds  of 
those  who  subscribed  to  the  Declaration  of  Independence  when 
they  declared — 

that  all  men  are  created  equal,  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  rights,  that  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness.  That  to  secure  these  rights  governments  are 
instituted  among  men,  deriving  their  just  powers  from  the  consent  of 
the  governed — 

as  well  as  in  the  minds  of  those  who  framed  the  Federal  Consti- 
tution. These  constitutions,  the  Declaration  of  Independence, 
and  the  Constitution  of  the  United  States,  recognize  to  the 
fullest  extent  the  right  of  the  people  to  govern  themselves. 

The  power  of  the  people  under  the  initiative  system  takes 
the  place  of  the  power  exercised  by  the  colonists  in  New 
England  of  legislating  directly  and  of  instructing  their  dele- 
gates to  the  legislature — a  power  wThich,  though  exercised  in 
the  earlier  days  of  the  Republic,  has  been  gradually  abandoned 
under  the  party  system.  It  is  but  a  revival  of  that  system,  and 
in  many  States  has  become  a  part  of  the  written  constitutions. 

The  time  was  when  the  citizen  instructed  the  delegates  to 
the  legislative  bodies  and  the  officers  who  were  to  administer 
the  laws,  but  under  the  party  and  convention  system  there  has 
been  an  abandonment  of  this  salutary  rule,  and  instead  of  the 
people  instructing  their  delegates  and  the  officers  who  are  to 
administer  the  law  these  instructions  come  now  from  the  politi- 
c.mI  machine  and  corrupt  party  boss.  There  has  been  a  complete 
reversal  of  the  forms  of  government  in  vogue  in  the  earlier  days 
of  the  Republic,  and  it  is  because  of  this  that  it  has  been  found 
necessary  for  the  people  to  resume,  or  rather  to  reassert  in  a 
Written  constitution,  a  right  and  power  which  in  days  gone  by 
they  were  wont  to  exercise,  but  which  they  have  unconsciously 
ami  graduaHj  eessed  to  use.  This  power  is  now  to  be  exer- 
cised again  under  the  initiative  system,  and  where  the  repre- 
sentatives in  tin'  legislative  assemblies  ignore  the  will  of  the 
;in:l  listen,  rather,  <■»  those  who  in  many  eases  have  be- 
eome  tii"   representatives  of  a  corrupt  party  system,  and  of 

r,5— 9841 


19 

those  who  are  wont  to  clamor  at  tho  legislate  halls  for  logis- 
lation  in  behalf  of  special  Interests,  the  people  themselves  can, 
upon  their  own  initiative,  enact  laws  in  the  interest  of  the  whole 
people  and  can,  under  the  power  reserved  to  them  through  the 

referendum,  defeat  legislation  which  is  hostile  to  the  public 
interest. 

Nor  must  it  be  forgotten  that  laws  enacted  by  the  people  are 
subject  in  the  final  analysis  to  legislative  control,  because,  as 
was  held  in  the  case  of  Kadderly  v.  The  City  of  Portland  (to 
which  I  have  heretofore  referred),  the  legislature  lias  power  to 
amend  and  to  repeal  any  law  enacted  under  the  initiative 
system. 

Further  than  that,  it  would  be  within  the  power  of  the  legis- 
lature under  the  Arizona  system,  as  it  has  been  hold  to  be 
within  the  power  of  the  legislature  and  the  executive  under  the 
Oregon  constitution,  to  defeat  a  referendum  upon  a  law  passed 
by  the  legislature  by  the  declaration  of  an  emergency  in  the 
statute  that  the  public  peace,  health,  and  safety  demanded  that 
it  should  go  into  effect  at  once.  Such  an  emergency  declared  to 
an  act  passed  by  the  legislature,  when  not  vetoed  by  the  execu- 
tive, is  beyond  the  reach  of  the  people  under  the  referendum 
system.  The  legislature  is  the  sole  judge  as  to  whether  or  not 
an  emergency  shall  be  declared,  and  though  there  is  some  con- 
flict of  opinion  the  weight  of  authority  is  that  the  courts  of  tho 
country  can  not  interfere  with  that  legislative  right;  so  that 
in  the  final  analysis  the  power  reserved  to  the  people  under  the 
initiative  system  and  under  the  power  of  the  referendum  is  but 
a  method  of  expressing  the  will  of  the  people,  a  method  of  in- 
structing their  representatives  to  the  legislature,  and  a  method 
of  showing  disapproval  of  their  conduct  in  the  enactment 
of  laws  which  have  not  for  their  purpose  the  common  good. 
No  more  perfect  system  of  checks  against  the  improvident 
or  improper  use  of  power,  whether  by  the  legislature  or  the 
people,  was  ever  devised  than  the  system  now  under  discussion. 

The  system  of  government  therefore  proposed  under-  this  con- 
stitution is  a  mixed  government,  a  representative  government 
in  combination  with  direct  legislation,  and  it  is  none  the  less 
a  republican  form  of  government,  because  there  is  perfect  co- 
operation between  the  legislative  or  representative  body  and 
the  people  acting  directly. 

Irrespective  of  the  particular  language  used  in  the  Arizona 
constitution  reserving  to  the  people  the  power  of  directly  en- 
acting laws  and  of  taking  a  referendum  on  legislation  passed 
by  the  legislature,  both  of  these  powers  have  been  from  time 
immemorial  exercised  by  the  people  of  the  older  States.  Most, 
if  not  all,  of  the  new  States  admitted  to  the  Union  have  by 
direct  vote  of  the  people  adopted  their  constitutions,  whether 
acting  pursuant  to  enabling  acts  which  expressly  directed  this 
to  be  done  or  upon  their  own  initiative.  These  constitutions 
are  sometimes  more  than  mere  fundamentals  of  government. 
Many  of  them  contain  express  provisions  which  are  self- 
acting  and  need  no  further  legislation  to  put  them  into  effect. 
The  adoption  of  these  constitutions  by  direct  vote  of  the  people, 
containing,  as  many  of  them  do,  provisions  regulating  the 
duties  of  the  citizen  and  the  rights  of  property,  are  just  as 
much  direct  legislation  as  if  they  had  been  enacted  under 
just  such  limitations  and  restrictions  as  are  contained  in  the 
90455—0841 


20 

constitution  of  Arizona.  No  suggestion  has  ever  been  made 
at  any  time  that  because  these  fundamental  laws  have  been 
enacted  by  a  direct  vote  of  the  people  that  they  are  therefore 
unrepublican  and  ought  not  to  be  admitted  to  the  Union. 
There  can  be  no  distinction  between  such  legislation  and 
legislation  which  might  hereafter  be  enacted  by  the  people 
under  the  provisions  of  the  Arizona  constitution,  and  which  has 
heretofore  been  enacted  by  the  people  under  the  constitutions 
of  Oregon  and  Oklahoma. 

Let  us  look  at  some  of  the  constitutions  which  have  con- 
tained general  legislation  and  which  the  courts  have  sustained 
as  sufficient  without  additional  legislation  to  make  them 
effective. 

Section  4  of  Article  XVI  of  the  constitution  of  Pennsylvania 
adopted  in  1873  provides  as  to  how  the  shareholders  may  vote 
in  the  election  of  directors  of  a  corporation. 

Section  5  provides  that  all  incorporations  must  have  known 
place  of  business  and  an  agent. 

Section  7  provides  that  corporations  shall  not  issue  stock  or 
bonds  except  under  certain  limitations,  and  that  all  fictitious 
increase  of  stock  shall  be  void. 

Article  XVII  regulates  railroads  and  canals  and  provides 
among  other  things  for  the  right  of  railroads  to  construct  rail- 
roads across  the  State,  and  the  right  of  one  railroad  to  connect 
with  or  cross  another  railroad,  and  the  duty  of  the  railroad  to 
receive  passengers  from  other  railroads.  Also,  that  every  rail- 
road or  canal  corporation  shall  maintain  an  office  where  transfer 
of  its  stock  shall  be  made,  and  its  books  shall  be  kept  for 
inspection  by  stockholders  and  creditors,  and  so  forth. 

Section  8  of  this  article  provides  that  there  shall  be  no  free 
issued  except  to  officers  and  employees  of  the  company. 
And  there  are  many  other  similar  provisions. 

Now,  note  that.  It  is  just  as  much  direct  legislation  as  if  it 
had  been  enacted  by  a  legislature  or  if  it  had  been  enacted  by 
the  people  under  the  initiative  system  of  legislation.  It  is  just 
as  complete  and  as  active. 

The  constitution  of  New  Jersey,  1844,  Article  I,  section  5, 
provides : 

In  all  prosecutions  or  indictments  for  libel  the  truth  may  be  given 
in  evidence  to  the  jury.  And  if  it  shall  appear  to  the  jury  that  the 
matter  charged  M  tibetoui  is  true  and  was  published  with  good  motives 
and  justifiable  ends,  the  party  shall  be  acquitted. 

And  the  same  provision  is  contained  in  many  other  constitu- 
tions. 

Article  XIII  of  the  constitution  of  Illinois  adopted  in  1870 
regulate!  warehouses.    Among  other  provisions,  section  4  is  as 

follows: 

All  railroad  companies  and  other  common  carriers  on  railroads  shall 
Weigh  and  measure  grain  at  points  where  it  is  shipped  and  receipt  Cot 
the  full  amount,  and  shall  be  responsible  for  the  delivery  of  such 
amount  to  the  owner  or  the  consignee  thereof  at  the  place  of  destina- 
tion. 

BeCtiOA  8  of  Article  XI  provides: 

That  every  stockholder  in  a  railroad  corporation  or  institution  shall 
be  Individually  responsible  and  liable  to  its  creditors  over  and  above 
the  amount  of  stock  by  him  or  her  held  to  an  amount  equal  to  his  or 
bee  i  bare*  to  held. 

Substantially  the  BMM  pro\ision  is  contained  in  the  consti- 
tutions of  Iowa,  Indiana i  Washington,  and  other  States. 

00455—0841 


21 

Section  2  of  Article  XV  of  the  constitution  of  Kansas  adopted 
in  1S55  prohibited  lotteries  in  that  State.  Many  other  States 
have  the  same  provision. 

Section  G  of  Article  XV  of  the  constitution  of  Kansas  adopted 
in  1857  provides  that — 

All  property,  both  real  and  personal,  of  the  wife  owned  or  claimed  by 
marriage  and  that  acquired  afterwards  by  gift,  devise,  or  consent,  shall 
be  her  separate  property. 

Section  9  of  Article  XV  of  the  constitution  of  Kansas,  1S59, 
provides : 

A  homestead  to  the  extent  of  100  acres  of  farming  land  or  of  1  acre 
within  the  limits  of  an  incorporated  town  or  city,  occupied  as  a  resi- 
dence by  the  family  of  the  owner,  shall  be  exempt  from  officer's  sale 
under  any  process  of  law,  etc. 

Similar  provisions  exist  in  many  other  States. 

The  constitution  of  Washington  regulates  corporations  in 
great  detail.  Section  191  prohibits  pooling;  section  193  prohibits 
the  consolidation  of  railroads;  section  194,  that  railroad  stock 
shall  be  considered  personalty;  section  197  prohibits  passes; 
section  198  provides  for  the  rights  of  express  companies  on 
railroads;  and  so  forth. 

Section  3  of  Article  IX  of  the  constitution  of  Wyoming  pro- 
vides : 

No  boy  under  the  age  of  14  years  and  no  woman  or  girl  of  any  age 
shall  be  permitted  to  be  in  or  about  any  dangerous  mine,  etc. 

Section  4  of  Article  IX  provides  for  the  liability  for  violation 
of  the  preceding  section;  and  section  6  of  Article  X  provides 
that  no  corporation  shall  have  power  to  engage  in  more  than 
one  general  line  of  business;  Article  X  also  regulates  railroads 
and  telegraph  lines  in  detail ;  section  12  of  Article  XV  provides 
for  an  exemption  from  taxation  of  churches,  public  cemeteries, 
and  so  forth ;  section  1  of  Article  XIX  provides  that  eight  hours 
shall  constitute  a  lawful  day's  work  in  all  lines.  That  article 
also  provides  that  certain  contracts  with  laborers  shall  be 
unlawful. 

I  have  shown  that  legislation  by  direct  vote  of  the  people 
has  been  expressly  authorized  by  and  enacted  in  the  constitu- 
tions of  a  number  of  the  States  and  the  power  recognized  by 
Congress.  I  shall  now  undertake  to  show  that  the  power  re- 
served under  the  referendum  clause  of  the  Arizona  constitu- 
tion has  been  reserved  by  the  constitution  of  nearly  every 
State  in  the  Union,  has  been  recognized  by  Congress  as  a 
valid  reservation  of  power,  and  has  been  exercised  as  well  by 
Congress  itself.  It  has  been  exercised  by  the  States  under 
constitutional  authority  in  matters  affecting  localities  in  the 
States,  as  well  as  in  matters  affecting  the  whole  State. 

And,  first,  as  to  those  affecting  the  States  at  large.  One  of 
the  earliest  constitutional  provisions  for  a  referendum  is  to  be 
found  in  Article  I,  section  23,  of  the  constitution  of  Georgia 
(1798),  which  is  as  follows: 

And  this  convention  doth  further  declare  and  assert  that  all  the 
territory  within  the  present  temporary  line,  and  within  the  limits 
aforesaid,  is  now,  of  right,  the  property  of  the  free  citizens  of  the 
State  and  held  by  them  in  sovereignty  inalienable,  but  by  their  consent. 

At  the  time  of  the  adoption  of  the  New  York  constitution  in 

1846  the  question  of  extending  the  right  of  suffrage  to  the 

negroes  was  referred  to  the  people,  and  a  like  provision  was 

made  in  the  Michigan  constitution  in  1850.     The  constitutions 

90455—9841 


22 

of  Wisconsin  (1848),  Kansas  (1858),  Colorado  (187G),  South 
Dakota  (18S9),  Washington  (1889),  and  North  Dakota  (1895) 
contain  provisions  for  a  referendum  of  questions  affecting 
suffrage,  leaving  it  absolutely  and  entirely  to  a  vote  of  the  ma- 
jority of  the  people  as  to  whether  these  provisions  should  be  op- 
erative or  not.  The  constitution  of  Rhode  Island  (1842)  pro- 
vides that  the  general  assembly  shall  have  no  power  without 
the  express  consent  of  the  people  to  incur  debts  in  excess  of 
$50,000,  nor  shall  they  in  any  case  without  such  consent  pledge 
the  faith  of  the  State  for  the  payment  of  the  obligations  of 
others. 

The  constitutions  of  Michigan  (1843),  New  Jersey  (1844), 
New  York  and  Iowa  (1846),  Illinois  (1848),  California  (1849), 
Kentucky  (1850),  Kansas  (1859),  Nebraska  (18GG),  Missouri 
(1875),  Colorado  (187G),  Louisiana  (1879),  Idaho,  Montana, 
Washington,  and  Wyoming  (1889),  and  South  Carolina  (1895) 
have  adopted  measures  providing  for  a  referendum  involving 
the  creation  of  debts  on  behalf  of  these  States  or  the  pledg- 
ing of  the  credit  thereof.  The  State  of  Texas,  in  its  constitu- 
tion of  1845,  provided  for  the  permanent  establishment  of  the 
seat  of  government  by  vote  of  the  people  at  an  election  the 
time,  place,  and  conduct  of  which  was  fixed  by  the  constitution. 
Numerous  States  followed  the  example  set  by  Texas  and 
adopted  substantially  the  same  provision  with  reference  to 
the  location  of  the  State  capital. 

Following  the  same  course,  the  State  of  Iowa,  in  its  consti- 
tution of  1846,  provided  that  no  act  of  the  general  assembly 
authorizing  or  creating  corporations  or  associations  with  bank- 
ing powers  should  take  effect  or  be  in  force  until  submitted  to 
the  people  at  a  general  or  special  election  and  by  a  majority 
of  them  approved.  Illinois,  Wisconsin,  Michigan,  Ohio,  Kansas, 
and  Missouri  followed  with  constitutional  provisions  of  sub- 
stantially the  same  character. 

Innumerable  instances  might  be  cited  showing  that  legisla- 
tion with  reference  to  the  sale  of  school  lands,  that  relating 
to  State  aid  to  railways,  to  taxation,  the  location  of  State  uni- 
versities, the  extension  of  suffrage,  and  appropriations  for 
State  purposes  was  required  by  constitutional  provision  to  be 
submitted  to  the  voters  of  the  State  for  approval  or  rejection. 

The  second  class  of  constitutional  provisions  providing  for 
a  referendum  are  those  which  affect  local  governments,  and 
within  this  class  come  a  great  variety  of  subjects.  The  first 
provision  of  this  kind  is  to  be  found  in  the  constitution  of  Ten- 
nessee of  1834,  where  the  people  reserved  to  themselves  the 
Bight  to  cooperate  in  acts  of  government  involving  the  change 
of  county  lines.    Section  4  of  Article  X  provided  that — 

No  part  of  the  county  shall  1)0  taken  to  form  a  new  county  or  a  part 
thereof  without  the  consent  of  a  majority  of  the  qualified  voters  in 
such  part  taken  off. 

Practically  the  same  provision  has  been  embodied  in  later 
constitutions  of  many  of  the  States,  some  requiring  a  majority 
of  the  electors  and  some  two-thirds  as  a  condition  to  changing 
county  lines. 

Section  5  of  Article  VIII  of  the  Maryland  constitution  of 
3804  provided  that— 

The  general  assemhly  shall  levy  at  each  regular  session  after  the 
adoption  of  the  constitution  an  annual  tax  of  not  less  than  10  cents 
on  each  $100  of  taxable  property  throughout  the  State  fur  the  purpose 
00455—9841 


23 

of  free  schools:  Provided,  That  the  general  assembly  shall  not  levy 
any  additional  school  tax  upon  particular  counties  unless  such  county 
express  by  popular  vote  its  desire  for  such  tax. 

This  provision  is  not  only  a  provision  of  initiative  legislation 
on  the  one  part,  but  contains  in  the  very  section  a  provision  for 
the  referendum  of  the  act  to  the  people  of  the  count y. 

Other  States  followed  with  constitutional  provisions  requir- 
ing a  referendum  on  laws  increasing  the  rate  of  taxation  for 
school  purposes.  Amongst  these  were  Missouri  (1875),  Texas 
(187G),  and  Florida  (1885).  Those  providing  for  a  referendum 
to  authorize  an  increased  tax  rate  in  counties  were  Texas 
(1868),  Illinois  (1870),  Nebraska  (1875),  West  Virginia  (1872), 
Missouri  (1875),  and  Louisiana  (1879).  The  provision  in  the 
Missouri  constitution  specifically  fixes  the  rate  which  may  be 
imposed  upon  the  people,  which  can  not  be  increased  without 
the  assent  of  the  people,  and  inasmuch  as  it  is  an  example  of 
direct  legislation,  self -executing,  as  well  as  an  example  of  the 
application  of  the  referendum  principle,  I  quote  it  at  length. 
It  is  as  follows : 

Taxes  for  county,  city,  town,  and  school  purposes  may  be  levied  on 
all  subjects  and  objects  of  taxation,  but  the  valuation  of  property 
therefor  shall  not  exceed  the  valuation  of  the  same  property  in  such 
town,  city,  or  school  district  for  State  and  county  purposes.  For 
county  purposes  the  annual  rate  on  property  in  counties  having 
$6,000,000  or  less  shall  not,  in  the  aggregate,  exceed  50  cents  on  the 
$100  valuation  ;  in  counties  having  $0,000,000  and  under  $10,000,000 
said  rate  shall  not  exceed  40  cents  on  the  $100  valuation  ;  in  counties 
having  $10,000,000  and  under  $30,000,000  said  rate  shall  not  exceed  50 
cents  on  the  $100  valuation  ;  and  in  counties  having  $30,000,000  or 
more  said  rate  shall  not  exceed  35  cents  on  the  $100  valuation.  For 
city  and  town  purposes  the  annual  rate  on  the  property  in  cities  and 
towns  having  30,000  inhabitants  or  more  shall  not,  in  the  aggregate, 
exceed  100  cents  on  the  $100  valuation  ;  in  cities  and  towns  having 
less  than  30,000  and  over  10,000  inhabitants  said  rate  shall  not  exceed 
€0  cents  on  the  $100  valuation  ;  in  cities  and  towns  having  less  than 
10,000  and  more  than  1,000  inhabitants  said  rate  shall  not  exceed  50 
cents  on  the  $100  valuation  ;  and  in  towns  having  1,000  inhabitants  or 
less  said  rate  shall  not  exceed  25  cents  on  the  $100  valuation.  For 
school  purposes  in  districts  the  annual  rate  on  property  shall  not  ex- 
ceed 40  cents  on  the  $100  valuation  :  Provided,  The  aforesaid  annual 
rates  for  school  purposes  may  be  increased  in  districts  formed  of  cities 
and  towns  to  an  amount  not  to  exceed  $1  on  the  $100  valuation  ;  and 
in  other  districts  to  an  amount  not  to  exceed  05  cents  on  the  $100 
valuation,  on  the  condition  that  a  majority  of  the  voters  who  are  tax- 
payers, voting  at  an  election  to  decide  the  question,  vote  for  said  in- 
crease. For  the  purpose  of  erecting  public  buildings  in  counties,  cities, 
or  school  districts,  the  rates  of  taxation  herein  limited  may  be  increased 
when  the  rate  of  such  an  increase  and  the  purpose  for  which  it  is  in- 
tended shall  have  been  submitted  to  a  vote  of  the  people,  and  two-thirds 
of  the  qualified  voters  of  such  county,  city,  or  school  district  voting  at 
such  election  shall  vote  therefor.  The  rate  herein  allowed  to  each 
county  shall  be  ascertained  by  the  amount  of  taxable  property  therein, 
according  to  the  last  assessment  for  State  and  county  purposes,  and  the 
rate  allowed  to  each  city  and  town  by  the  number  of  inhabitants  accord- 
ing to  the  last  census  taken  under  the  authority  of  the  State  or  the 
United  States  ;  said  restrictions  as  to  rates  shall  apply  to  taxes  of  every 
kind  and  description,  whether  general  or  special,  except  taxes  to  pay 
valid  indebtedness  now  existing  or  bonds  which  may  be  issued  in 
renewal  of  such  indebtedness. 

Provisions  are  also  to  be  found  in  the  constitutions  of  many 
of  the  States  subjecting  to  a  referendum  local  matters  with  re- 
gard to  creating  municipal  indebtedness  and  the  issuance  of 
bonds,  the  acquiring  of  waterworks  and  plants  for  light,  chang- 
ing lines  of  judicial  districts,  the  formation  of  new  courts,  and 
other  questions  of  a  purely  local  character ;  but  I  do  not  deem 
it  necessary  to  quote  at  length  from  the  constitutions  embody- 

00455— 9S41 


24 

ing  these  provisions,  satisfying  myself  with  a  mere  reference 
thereto. 

The  provisions  of  the  first  class  have  generally  been  sus- 
tained by  the  courts,  with  some  difference  of  judicial  opinion 
as  to  the  latter  class  of  cases;  but  the  conflict  of  judicial  deci- 
sion, it  will  be  found,  usually  precedes  the  written  constitutions 
authorizing  the  referendum,  and  out  of  this  conflict,  it  will  be 
found,  has  grown  the  written  constitution  authorizing  the  ref- 
erendum on  matters  affecting  localities  in  the  several  States. 
The  people  have  been  driven  to  these  constitutional  restrictions 
to  place  a  check  upon  legislative  extravagance  and  the  abuse 
of  trust  by  the  agents  of  government.  It  has  been  found  neces- 
sary to  protect  the  people  through  these  instrumentalities,  both 
from  oppression  and  from  uncertainty  of  judicial  interpretation. 

Other  instances  might  be  cited  to  show  that  affirmative  legis- 
lation is  contained  in  the  fundamental  laws  of  the  States  which 
have  been  enacted  directly  by  the  people.  What  difference  can 
it  make  how  the  initial  steps  have  been  taken,  whether  pur- 
suant to  an  enabling  act  which  authorizes  the  people  to  formu- 
late and  directly  vote  upon  a  constitution,  or  whether  without 
such  enabling  act,  as  has  been  done  by  Oregon  and  some  other 
States  of  the  Union  on  their  own  initiative,  or  by  a  certain 
percentage  of  the  voters  of  a  State,  as  authorized  to  be  done 
under  the  Arizona  constitution?  Can  it  be  said  that  in  the  lat- 
ter case  the  constitution,  which  expressly  authorizes  it,  makes 
the  government  of  the  State  unrepublican,  and  in  the  former 
cases,  where  exactly  the  same  results  are  obtained,  the  govern- 
ment of  the  States  is  republican?  For  Congress  now  to  hold 
that  the  inclusion  of  the  initiative  and  referendum  in  the  fun- 
damental law  of  Arizona  would  give  to  that  State  a  form  of 
government  that  was  not  republican  in  character,  would  of 
necessity  revise  the  whole  policy  of  the  Government.  Congress 
itself,  by  act  of  July  9,  1846,  which  had  for  its  purpose  the 
recession  of  a  part  of  the  District  of  Columbia  to  the  State  of 
Virginia,  submitted  to  the  qualified  electors  of  the  District  the 
question  of  recession,  provided  the  machinery  for  the  election, 
and  enacted  that  if  a  majority  should  be  against  accepting  the 
provisions  of  the  act  it  should  be  void  and  of  no  effect,  other- 
wise it  should  be  in  full  force. 

The  objection  most  seriously  urged  against  the  Arizona  con- 
stitution is  the  provision  which  it  contains  with  reference  to 
the  recall  of  public  officers.  There  is  no  limitation  as  to  the 
class  of  officers  to  whom  it  shall  apply.  It  is  general  in  its 
terms  and  is  intended  to  reach  those  holding  office,  whether  by 
election  or  appointment.  The  provision  is  not  essentially  dif- 
ferent from  that  embodied  in  the  constitutions  of  Oregon  and 
Oklahoma,  and  possibly  other  States,  as  well  as  in  the  charters 
of  many  of  Hie  larger  cities  of  the  country. 

The  objection  most  frequently  made  to  the  Arizona  constitu- 
tion is  the  application  of  the  recall  to  the  judiciary.  The  ques- 
tion involved  is  not  one  of  individual  opinion  but  one  of  prin- 
ciple, and  that  is,  whether  the  people  of  Arizona  or  the  majority 
of  them  have  the  right,  if  they  see  fit,  in  their  wisdom,  to  make 
the  recall  applicable  to  the  judiciary  .is  well  as  to  other  public 
servants.  The  argument  usually  urged  agatftftt  the  application 
of  t  1m*  recall  to  the  judiciary  is  1h;il  it  leads  to  destroy  its  inde- 
pendence. To  make  this  insistence  impeaches  the  intelligence 
00455—9841 


25 

and  integrity  of  the  people  of  a  St:tt<\  and  it  assumes  that  for 
slight  and  trivial  reasons,  based  Upon  the  determination  of  an 
issue  between  individuals,  or  between  an  Individual  and  the 
Commonwealth  or  between  the  Commonwealth  and  a  nation,  the 
machinery  of  the  recall  might  be  set  in  motion  to  punish  a 
court  with  whom  the  majority  of  the  people  might  disagree. 
That  may  be  possible,  but  it  is  not  at  all  probable;  for,  although 
the  recall  has  been  in  operation  for  a  number  of  years  under 
charter  and  constitutional  provisions  like  the  Arizona  constitu- 
tion, it  has  only  been  used  twice — once  in  the  city  of  Los  Angeles, 
Cal.,  and  one  in  the  city  of  Seattle,  Wash.  (I  have  just  learned 
that  it  has  been  used  in  Texas  on  one  occasion.)  It  is  generally 
admitted  by  friends,  as  well  as  opponents  of  the  measure,  that 
there  was  justification  for  the  recall  in  both  instances,  in  one, 
at  least,  of  which  a  servant  and  agent  of  the  people,  occupying 
the  highest  position  in  their  gift,  had  entered  into  combination 
with  gamblers  and  thugs  and  the  denizens  of  the  red-light  dis- 
trict to  levy  graft  and  defeat  the  will  of  the  people  to  purposes 
of  piracy  and  plunder. 

But  as  an  abstract  proposition,  why  should  a  judicial  officer 
any  more  than  any  other  public  official  be  independent  of  the 
wishes  of  his  constituents?  It  is  not  a  democratic  conception 
of  republican  government  that  places  the  representative  in  a 
position  which  will  make  him  indifferent  to  the  wishes  of  his 
constituents.  Such  a  conception  is  aristocratic;  it  is  monarch- 
ical; it  is  autocratic.  The  democratic  conception,  on  the  con- 
trary, is  that  the  people  will  think  for  themselves  and  that  the 
agent  or  servant  of  the  people,  in  whatever  position  he  serves,  is 
but  the  reflection  of  the  popular  will.  As  an  abstract  proposi- 
tion, therefore,  there  is  no  reason  why  the  judicial  officer,  as 
well  as  every  officer  of  the  Government,  should  not  be  responsive 
to  the  will  of  those  whose  servant  he  is.  But  the  idea  of  the 
recall  as  applied  to  the  judiciary,  as  well  as  to  other  agents, 
representatives,  and  servants  of  the  people,  is  older  than  the 
Constitution  itself.  The  principle  has  been  recognized  in  every 
department  of  Government,  and  more  particularly  is  this  true 
with  reference  to  the  judiciary. 

Section  33  of  the  bill  of  rights  of  Maryland,  of  1776,  provides: 

That  the  independency  and  uprightness  of  judges  are  essential  to  the 
impartial  administration  of  justice  and  a  great  security  to  the  rights 
and  liberties  of  the  people ;  whereas  the  chancellor  and  judges  ought 
to  hold  commissions  during  good  behavior  ;  and  the  said  chancellor  and 
judges  shall  be  removed  for  misbehavior  on  conviction  in  a  court  of 
law,  and  may  be  removed  by  the  governor  upon  the  address  of  the 
general  assembly  :  Provided,  That  two-thirds  of  all  the  members  of  ea,ch 
house  concur  in  such  address. 

Absolutely  leaving  to  the  legislative  body  the  power,  upon  the 
address  of  two-thirds  of  its  membership,  to  remove  the  judge, 
even  without  a  hearing;  and  there  it  was  assumed  that  this 
was  for  the  purpose  of  maintaining  the  independence  of  the 
judiciary  rather  than  of  affecting  and  destroying  it. 

This  provision  is  reenacted  in  the  constitution  of  1851  (Art. 
IV,  sec.  4)  and  in  the  constitution  of  1SG4  (Art.  IV,  sec.  4)  and 
again  in  the  constitution  of  18G7  (Art.  IV,  sec.  4),  and  is  at 
this  time  a  part  of  the  fundamental  law  of  that  State. 

It  has  not  had  the  effect  to  destroy  the  independency  of  the 
judiciary  of  that  magnificent  commonwealth. 

This  observation  may  be  made — and  it  is  applicable  to  the 
constitutions  of  other  States  to  which  I  shall  call  attention— 
90455—9841 


26 

that  the  recall  of  judges,  in  addition  to  the  provision  for 
removal  on  the  ground  of  incompetency,  of  willful  neglect  of 
duty,  of  misbehavior  in  office,  or  any  other  crime,  or  on  im- 
peachment, is  a  general  power  and  is  left  to  the  discretion  of 
the  general  assembly.  Sometimes  a  two-thirds  vote  is  necessary 
and  in  other  cases  only  a  majority.  The  bill  of  rights  of  Mary- 
land states  the  reasons  for  the  vesting  of  this  great  discretion- 
ary power  in  the  legislative  assembly.  It  is  because  it  was 
deemed  necessary  to  maintain  the  independency  and  the  up- 
rightness of  judges  rather  than  to  destroy  their  independency 
and  responsibility  for  their  acts. 

The  constitution  of  Georgia  of  179S  (Art.  Ill,  sec.  1)  provides 
that— 

The  judges  of  the  superior  court  shall  be  elected  for  the  term  or 
three  years,  removable  by  the  governor  on  the  address  of  two-thirds  of 
both  houses  for  that  purpose,  or  by  impeachment  and  conviction  thereon. 

The  same  provision  is  to  be  found  in  the  amendment  to  the 
constitution  ratified  in  1S12,  and  again  in  the  amendment  rati- 
fied in  1818,  and  again  in  1835  and  in  1865. 

No  one  has  ever  heard  the  integrity  of  the  judicial  system 
called  in  question  in  that  State. 

I  call  the  attention  of  the  distinguished  Senator  from  Virginia 
[Mr.  Martin]  to  the  constitution  of  Virginia,  with  which  I 
know  he  is  familiar. 

The  constitution  of  Virginia  of  1S30  (Art.  V,  sec.  6)  contains 
the  same  provision.  It  was  reeuacted  in  the  constitution  of 
1850  (Art.  VII,  sec.  17)  and  in  1864  (Art.  VI,  sec.  16)  and  in 
1870  (Art.  VI,  sec.  23)  and  in  1002  (Art.  VI,  sec.  104).  The 
power  of  removal  for  cause  is  vested  in  a  majority  of  the  mem- 
bers of  the  legislature.  This  provision  is  now  a  part  of  the 
fundamental  law  of  Virginia. 

The  constitution  of  Texas  of  1845  provides  for  the  appoint- 
ment of  judges  by  the  governor,  by  and  with  the  advice  and 
consent  of  two-thirds  of  the  senate,  and  Article  IV,  section  8, 
provides : 

The  judges  of  the  supreme  and  district  courts  shall  be  removed  by 
the  governor,  on  the  address  of  two-thirds  of  each  house  of  the  legis- 
lature, for  willful  neglect  of  duty  or  other  reasonable  cause — 

Absolutely  vesting  in  the  legislature  the  power  of  determining 
whether  or  not  a  cause  exists — 

which  shall  not  be  sufficient  ground  for  Impeachment:  Provided,  how- 
ever, That  the  cause  or  causes  for  which  such  removal  shall  be  required 
shall  be  stated  at  length  in  such  address  and  entered  on  the  journals  of 
each  house:  And  provided  further,  That  the  cause  or  causes  shall  be 
notified  to  the  judge  so  intended  to  be  removed ;  and  he  shall  be  admit- 
ted to  a  hearing  In  his  own  defense  before  any  vote  for  such  address 
shall  pass ;  and  in  all  such  cases  the  vote  shall  be  taken  by  yeas  and 
nays  and  entered  on  the  journals  of  each  house,  respectively. 

It  will  be  observed  that  the  legislature  is  vested  with  the 
power,  by  a  two-thirds  vote,  of  compelliug  the  governor  to  re- 
move a  judge  for  willful  neglect  of  duty  or  other  reasonable 
cause  which  shall  not  be  sufficient  ground  for  impeachment. 
This  vests  a  most  extraordinary  power  in  a  legislative  body. 
Has  its  tendency  been  to  compel  the  judiciary  of  that  Com- 
monwealth to  decide  controversies  between  citizens  to  suit  the 
whims  of  the  legislative  assembly  or  to  destroy  the  independence 
of  the  judiciary? 
00155—9841 


27 

The  same  provision  is  to  bo  found  in  the  constitution  of 
1SG3  (Art.  V,  sec.  10)  and  in  that  of  1870  (Art.  XV,  sec.  8), 
and  is  now  a  part  of  the  fundamental  law  of  Texas. 

The  constitutions  of  Delaware,  Connecticut,  and  other  States 
have  substantially  the  same  provisions,  but  reference  to  a  few 
only  is  sullieient  to  establish  the  principle  for  wliieh  I  contend  — 
that  the  power  of  recall  with  reference  to  the  judiciary  is  not 
a  new  tiling  in  the  constitutional  history  of  the  country,  and 
differs  only  in  the  Arizona  constitution  from  the  constitutions 
of  other  States  in  that  there  is  a  transference  of  the  power  of 
recall  from  the  legislature  to  the  people.  The  principle  is  the 
same.  If  the  transference  of  this  power  to  the  people  tends  to 
destroy  the  independence  of  the  judiciary  may  it  not  also  be 
claimed  that  the  power  to  exercise  it  in  the  case  of  the  legis- 
lature tends  to  destroy  that  independence?  Recent  develop- 
ments tend  to  show  that  some  legislative  bodies  at  least  are 
influenced  by  the  corruptest  motives,  and  if  they  may  be  cor- 
rupted to  secure  the  enactment  or  defeat  of  laws,  or  to  secure 
the  election  or  defeat  of  Senators,  may  they  not  be  influenced 
by  the  same  corrupt  instrumentalities  to  unseat  the  judges'? 
It  is  safe  to  say  that  the  tenure  of  a  judge,  whether  appointive 
or  elective,  is  more  secure  in  the  hands  of  the  people  than  in 
the  average  legislature  of  to-day. 

But  the  recall  has  been  applied  from  the  earliest  days  of 
the  Republic  to  other  officers  than  judicial.  In  the  summer  of 
1783 — I  call  the  attention  of  my  Democratic  friends  to  this — 
it  was  expected  that  the  Assembly  of  Virginia  would  call  a 
convention  for  the  establishment  of  a  constitution.  Jefferson 
prepared  a  draft  of  one,  with  the  design  that  it  should  be  pro- 
posed in  such  convention.  This  draft,  among  other  things, 
provided  that — ■ 

The  Delegates  to  Congress  shall  he  appointed  hy  joint  ballot  of  both 
houses  of  the  assembly  for  a  term  not  exceeding  one  year,  subject  to 
being  recalled  within  the  term  by  joint  vote  of  both  said  houses. 
(Jefferson's   Notes  on  Virginia.) 

It  is  probable  that  this  suggestion  of  Jefferson  had  its  birth 
in  Article  VIII  of  the  bill  of  rights  of  the  Commonwealth  of 
Massachusetts  of  1780,  which  provides: 

In  order  to  prevent  those  who  are  vested  with  authority  from  be- 
coming oppressors,  the  people  have  a  right,  at  such  periods  and  in 
such  manner  as  they  shall  establish  by  their  frame  of  government,  to 
cause  their  public  officers  to  return  to  private  life,  and  to  fill  up  vacant 
places  by  certain  and  regular  elections  and  appointments. 

This  declaration  contained  in  the  bill  of  rights  of  Massa- 
chusetts finds  expression  in  Chapter  IV  of  the  constitution  of 
1780  of  that  Commonwealth,  which  provides  for  the  election  of 
Delegates  to  the  Congress  of  the  United  States  who  "may  be 
recalled  at  any  time  within  the  year  and  others  chosen  and  com- 
missioned "  in  their  stead. 

The  constitution  of  New  Hampshire  of  1784  provides  for  the 
election  of  Delegates  to  the  Congress,  and  states  that   they — 
may  be  recalled  at  any  time  witbin  the  year   and  others  chosen  and 
commissioned  in  the  same  manner  in  their  stead. 

The  Articles  of  Confederation  of  1778  (Art.  V)  contains, 
among  other  things,  this  provision : 

Art.  V.  For  the  more  convenient  management  of  the  general  interest 
of  the  United  States,   Delegates  shall  be  annually  appointed,  in  such 
manner  as  the  legislature  of  each  State  shall  direct,   to  meet  in  Con- 
90455—9841 


28 

press  on  the  first  Monday  in  November  in  every  year,  with  a  power 
reserved  to  each  State  to  recall  its  Delegates,  or  any  of  them,  at  any 
time  within  the  year,  and  to  send  others  in  their  stead,  for  the  remain- 
der of  the  year. 

So  under  the  old  Articles  of  Confederation  that  power  was 
expressly  reserved  to  each  of  the  Colonies. 

It  may  be  argued  that  because  this  power  was  not  reserved  in 
the  Federal  Constitution  that  therefore  the  framers  of  that 
instrument  thought  it  inadvisable  to  provide  a  method  of  recall- 
ing unfaithful  or  corrupt  officials,  but  it  must  be  remembered 
that  the  Constitution  of  the  United  States  is  but  a  grant  of 
power  and  reserves  to  the  people  of  the  several  States  those 
powers  which  are  not  expressly  granted;  and  in  this  view  the 
Constitution  of  the  United  States  is  but  a  recognition  of  the 
power  of  the  people  of  the  several  States  to  exercise  those  pow- 
ers and  privileges  which  had  been  exercised  prior  to  the  adop- 
tion of  the  Constitution.  The  exercise  of  the  power  by  the  peo- 
ple of  Arizona  is  one  of  the  rights  reserved  to  the  people,  and 
the  fact  that  they  have  seen  fit  to  embody  it  in  a  written  con- 
stitution should  have  no  controlling  influence  with  the  Congress 
of  the  United  States  on  the  question  of  the  admission  of  Arizona 
to  the  Union. 

Having  attempted  to  show  that  the  initiative,  the  referendum, 
and  the  recall  are  as  old  or  older  than  the  Constitution  of  the 
United  States,  occasionally  finding  expression  in  the'  written 
constitutions  of  the  Colonies  and  of  the  States,  and  again  with- 
out this  express  recognition  in  such  constitutions,  being  never- 
theless exercised  as  a  part  of  the  power  expressly  reserved  to 
the  people  of  the  several  States,  it  is  proper  to  consider  why  it 
is  that  one  after  another  of  the  States  of  the  Union  has  ex- 
pressly ingrafted  all  of  these  powers  as  a  part  of  the  more 
modern  written  constitutions. 

The  movement  has  grown  out  of  the  perversion  of  the  party 
system  of  government  exercised  through  the  caucus  and  con- 
vention. It  has  become  necessary  because  this  system,  which 
was  unknown  to  the  framers  of  the  Constitution,  has  through 
the  instrumentality  of  the  convention  tended  to  destroy  the 
integrity  of  the  representative  system  of  government.  Just  as 
the  Australian-ballot  law,  the  direct-primary  law,  and  the 
corrupt-practices  act  have  been  resorted  to  for  the  protection  of 
elections  against  the  control  and  manipulation  of  corrupt  influ- 
ences, so  the  people  have  found  it  necessary  to  create  a  sys- 
tem of  checks  and  balances  in  the  fundamental  laws  of  the 
States  to  protect  them  against  the  acts  of  the  corrupt  or  faith- 
less public  servant,  whether  in  the  legislative  or  judicial  or 
executive  branches  of  the  Government. 

As  long  as  these  representatives  nominated  under  the  con- 
vention system  were  faithful  to  their  duties  there  was  no  de- 
mand for  the  exercise  of  the  reserve  powers  which  are  now  ex- 
pressly sought  to  be  exercised  through  the  instrumentality  of 
the  initiative,  the  referendum,  and  the  recall.  With  the  growth 
of  the  party  system,  however,  and  the  development  of  the  con- 
vention system,  which  removed  the  representative  and  public 
Benrant  too  far  from  the  people  and  almost  entirely  out  of  touch 
with  them,  recourse  to  restrictive  and  controlling  methods  be- 
came necessary.  It  must  be  remembered  in  this  connection  that 
in  colonial  times  and  in  the  earlier  days  of  the  Government  in- 
augurated under  the  Constitution  parties  as  well  as  conventions 
00455—9841 


were  practically  unknown.  The  people  acted  directly  in  mat- 
ters of  selecting  their  representatives  and  Instructed  them  a«  to 
their  duties.  These  instructions  were  implicitly  obeyed.  Qracta- 
ally.  with  the  growth  of  parties,  systems  were  evolved  for  sug- 
gesting candidates  and  formulating  policies  and  platform*  :is 
well.  Candidates  for  the  Presidency  were  nominated  in  the 
congressional  caucus  by  the  Representatives  in  Congress  of  the 
different  political  parties,  but  this  method  soon  subjected  itself 
to  the  charge  of  usurping  the  functions  of  the  people,  who 
considered  themselves,  rightly,  the  source  of  all  power.  It  was 
eventually  abandoned,  and  the  convention  system  took  its 
place. 

The  first  convention  was  that  held  in  1831  by  the  anti-Masonic 
Party,  and  this  was  later  followed  by  the  Democratic  and  Whig 
Parties.  The  convention  of  delegates,  although  not  recognized 
by  the  Constitution  of  the  United  States  or  the  laws  of  Con- 
gress or  of  the  Stales,  continued  to  grow  in  strength  and  influ- 
ence, using  its  power  with  such  insolence  that  in  1844  John  C. 
Calhoun  refused  to  suffer  his  name  to  go  before  a  convention  for 
the  presidential  nomination,  publishing  an  address  in  which  he 
said  amongst  other  things: 

I  hold  it  impossible  to  form  a  scheme  more  perfectly  calculated  to 
annihilate  the  control  of  the  people  over  the  presidential  election  and 
vest  it  in  those  who  make  politics  a  trade  and  who  live  and  e&pecl  to 
live  on  the  Government.     (Benton's  Thirty  Years'  View,  Vol.  II,  p.  596.) 

At  the  Democratic  national  convention  of  1844,  although  a 
majority  of  the  delegates  were  pledged  to  Van  Buren,  who  had 
formerly  been  President,  he  failed  of  nomination  by  reason  of 
violated  pledges,  and  Polk  was  nominated.  In  speaking  of  the 
convention  Senator  Benton  says : 

That  convention  is  an  era  in  our  political  history  to  he  looked  hack 
upon  as  the  starting  point  in  a  course  of  usurpation  Which  has  taken 
the  choice  of  President  out  of  the  hands  of  the  people  and  vested  it  in 
the  hands  of  a  self-constituted  and  irresponsible  assemblage.  The 
wrong  to  Mr.  Van  Buren  was  personal  and  temporary,  and  died  with 
the  occasion,  and  constitutes  no  part  of  the  object  in  writing  t liis 
chapter  ;  the  wrong  to  the  people  and  the  injury  to  republican  insti- 
tutions and  to  our  form  of  government  was  deep  and  abiding,  and 
calls  for  the  grave  and  correctional  judgment  of  history.  It  v 
first  instance  in  which  a  body  of  men.  unknown  to  the  laws  and  the 
Constitution,  and  many  of  them  (as  being  Members  of  Congress  or 
holding  offices  of  honor  or  profit)  constitutionally  disqualified  to  serve 
even  as  electors,  assumed  to  treat  the  American  Presidency  as  their 
private  property,  to  be  disposed  at  their  own  will  and  pleasure.  :md.  it 
may  be  added,  for  their  own  profit,  for  many  of  them  demanded  and 
received  reward.  It  was  the  first  instance  of  such  a  disposal  of  the 
Presidency — for  these  nominations  are  the  election,  so  far  as  the  party 
Is  concerned — but  not  the  last.  It  has  become  the  rule  since,  and  has 
been  improved  upon.  These  assemblages  now  perpetuate  then 
through  a  committee  of  their  own,  ramified  into  each  State,  sitting 
permanently  from  four  years  to  four  years,  and  working  Incessantly  to 
govern  the  election  that  is  to  come,  after  having  governed  the  one 
that  is  past.  The  man  they  choose  must  always  l>e  a  character  of  no 
force,  that  they  may  rule  him ;  and  they  rule  always  for  their  own 
advantage,  "  constituting  a  power  behind  the  throne  greater  than  the 
throne." 

Commenting  upon  Calhoun's  views  of  the  convention,  Mr. 
Benton  remarks : 

Mr.  Calhoun  considered  the  convention  system,  degenerated  to  the 
point  it  was  in  1844,  to  have  been  a  hundred  times  more  objectionable 
than  the  Congress  caucuses,  which  had  been  repudiated  by  the  people. 
Measured  by  the  same  scale,  they  are  a  thousand  times  worse  at  pres- 
ent (1853),  having  succeeded  to  every  objection  that  was  made  against 
the  Congress  caucuses  and  superadded  a  multitude  of  others  going  di- 
90455—9841 


30 

rectly  to  scandalous  corruption,  open  intrigue,  direct  bargain  and  sale, 
and  flajrrant  disregard  of  the  popular  will.  (Thirty  Years'  View,  Vol. 
II,  p.  597.) 

Mr.  President,  it  has  taken  the  people  of  this  country  more 
than  60  years  to  realize  the  truth  of  the  statement  contained 
by  Calhoun  in  his  address  and  by  Benton  in  his  work,  but  they 
have  gradually  come  to  an  understanding  of  the  matter,  and 
that  has  given  birth  to  this  progressive  movement. 

We  have,  therefore,  eminent  and  respectable  authority  for 
the  statement  that  the  convention  system  in  the  first  half  cen- 
tury of  our  history  had  degenerated  into  a  machine  which  not 
iraly  disregarded  the  rights  of  the  people,  but  usurped  the 
powers  and  functions  which  it  was  intended  by  the  framers  of 
the  Constitution  should  be  and  remain  a  part  of  the  reserved 
rights  of  the  people  of  the  several  States.  This  system,  instead 
of  growing  better,  has  gradually  grown  worse  since  the  days  of 
Calhoun  and  Benton.  Through  it  the  party  machine  and  the 
corrupt  political  boss  have  practically  obtained  control  of  the 
instrumentalities  of  government,  both  National  and  State. 

Men  who  have  watched  the  political  movements  of  the  times 
know  that  the  chairmen  of  the  various  political  parties  in  the 
different  States  of  the  Union,  directly  or  indirectly,  name  the 
delegates  to  the  county  conventions,  to  the  State  conventions, 
and  sometimes  under  the  direction  of  the  national  chairman  the 
delegates  to  the  national  convention.  Through  the  power  thus 
.  exercised  candidates  for  the  legislature  are  named  in  the  county 
conventions  and  candidates  for  the  State  offices  in  the  State  con- 
ventions, so  that  in  the  final  analysis,  although  the  people  have 
been  deluded  into  the  belief  that  because  they  have  assisted  in 
the  election  of  men  nominated  for  office  in  the  manner  I  have 
suggested  they  have  had  a  voice  in  their  affairs ;  they  have  prac- 
tically had  no  voice,  because  they  have  had  little  to  do  with  the 
selection  of  their  candidates.  It  is  well  known  that  men  are 
frequently  nominated  for  the  legislatures  and  for  State  offices 
as  well  under  this  system  not  so  much  because  of  their  fitness 
to  represent  or  to  serve  their  several  constituencies  as  because 
it  was  well  understood  that  they  would  act  as  the  faithful 
representatives  of  the  particular  interests  that  it  was  intended 
they  should  serve.  It  has  not  been  found  so  extremely  difficult 
in  times  past,  by  the  corrupt  and  copious  use  of  money,  to 
control  conventions  and  to  secure  the  nomination  of  men  who 
could  be  relied  upon  to  carry  out  the  dictates  of  an  unscrupu- 
lous party  machine  dominated  by  a  more  unscrupulous  party 
boss.  The  money  to  accomplish  these  purposes  has  been  fur- 
nished not  infrequently  by  public-service  and  other  great  finan- 
cial interests,  by  corporations,  and  by  men  who  were  interested 
not  in  accomplishing  the  greatest  good  for  the  greatest  number, 
but  in  securing  valuable  franchises  and  special  privileges  with- 
out compensation,  or  in  preventing  the  passage  of  laws  that 
would  stay  their  hands  in  raids  upon  the  public  treasury. 

The  interests  of  the  people  of  a  State  have  too  often  been 
subordinated  to  the  packing  of  a  convention  in  the  interest  of  a 
particular  candidate  for  the  Senate  of  the  United  States,  and 
all  the  money  that  has  been  necessary  to  do  this  has  been 
furnished  sometimes  by  corporations  and  interests  entirely  out- 
side of  the  particular  States.  This  money  has  not  been  fur- 
nished from  motives  of  disinterested  patriotism  or  philanthropy, 
00155—9841 


31 

but  rather  to  insure  the  election  of  men  who  could  be  relied 
upon  to  stand  as  the  representatives  not  of  the  people,  but  ol 

special  interests  and  the  beneficiaries  of  class  legislation. 

We  have  recently  had  before  us  here  in  the  Senate  a  case 
where  the  "jack  pot"  played  an  important  part  in  the  election 
of  a  Member  of  this  Chamber,  and  it  seems  that  the  end  of 
this  celebrated  case  has  not  yet  been  reached.  Instance  after 
instance  might  be  cited  to  show  that  particular  interests, 
directing  the  movements  of  a  corrupt  political  leader,  have 
sought  to  control  legislative  bodies  for  their  own  corrupt  pur- 
poses. 

This  condition  is  an  absolute  perversion  of  the  purposes  of 
government  as  established  by  our  fathers.  In  theory  the  peo- 
ple have  had  a  representative  form  of  government;  in  fact  it 
has  not  been  representative.  The  history  of  the  development 
of  the  party  system  of  government,  the  evolution  of  the  conven- 
tion, the  boss,  the  corrupt  machine,  and  the  spoils  system  is  im- 
partially and  truthfully  recited  in  Bryce's  American  Common- 
wealth, and  not  a  statement  therein  contained  but  finds  verifi- 
cation in  the  political  conditions  of  to-day  in  State  and  Nation. 
We  may,  if  we  will,  vilify  the  muckraker  and  abuse  the  inde- 
pendent press  of  the  country,  but  these  instrumentalities  for 
the  dissemination  of  news  and  turning  the  limelight  on  the 
rascals  in  public  life  have  driven  the  people  to  understand  at 
last  that  some  corrective  method  must  be  applied  to  bring  back 
the  Government  to  the  people,  who  are,  and  of  right  ought  to  be, 
the  source  of  all  power.  The  masses  move  slowly  toward  the 
correction  of  abuses  and  the  adoption  of  reforms,  but  when 
once  they  know  that  their  rights  are  being  invaded  they  can  be 
absolutely  and  entirely  relied  upon  to  work  such  reforms  as 
may  be  necessary  to  correct  the  evils  of  government. 

The  magazines  and  the  press,  while  they  may  have  occa- 
sionally exaggerated  conditions,  have  nevertheless  told  much  of 
truth  in  reference  to  the  rottenness  of  our  system  of  govern- 
ment under  the  domination  of  the  corrupt  political  boss  and 
machine,  and  the  movement  for  reforms  may  be  traced  to  the 
light  that  has  been  turned  on  our  affairs  through  their  in- 
strumentality. It  is  because  of  these  conditions  to  which  at- 
tention was  called  by  Benton  and  Calhoun,  and  later  by  Bryce 
and  the  press  and  the  magazine  writers  of  the  country,  that  the 
people  have  determined  to  secure  to  themselves  purity,  honesty, 
and  efficiency  in  the  administration  of  affairs.  It  was  these 
conditions,  which  can  not  truthfully  be  denied,  that  gave  life 
and  vitality  to  the  initiative  and  to  the  referendum  as  instru- 
mentalities for  securing  to  the  people  legislation  which  their 
representatives  neglected  to  give  them  and  to  check  extrava- 
gance and  corruption  on  the  part  of  these  same  representa- 
tives in  the  enactment  of  laws  which  were  opposed  to  the 
public  welfare  and  in  the  interests  of  the  privileged  classes. 
It  was  this  condition  which  determined  the  people  to  assert 
their  right  to  recall  the  faithless  public  servant,  and  the  three 
in  combination  are  a  perfect  safeguard  to  the  rights  of  the 
people  and  an  absolute  check  upon  maladministration  of  af- 
fairs. They  are  essential  to  the  perpetuation  of  our  institu- 
tions and  the  preservation  of  a  republican  form  of  govern- 
ment. 

90455—9841 

o 


